Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment

Judgment:

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			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
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			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
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			'respondent' => 'Gulab Singh and ors.',
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		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
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		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
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		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
)
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1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads :

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			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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The amount of money collected by you from each of the above mentioned employees is as shown against their names.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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1. Your pay cover for the month of August 1981;

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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3. You were thus indulging in money-lending to employees within the company premises.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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4. The above constitute acts of misconduct under the following clauses of standing orders :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
)
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Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
)
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5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.'

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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'25(19). Gambling and money-lending or doing any other private business within the company's premises.'

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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(i) Gambling,

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
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			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
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$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
)
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(ii) Money-lending,

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
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			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
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$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19).

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.'

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
)
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Again, before the Inquiring Authority, he stated thus :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.'

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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Finally, in his reply to the show-cause notice, the first respondent stated thus :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.'

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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15. In the result, the domestic inquiry is held to be valid.'

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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19. In the result, I make the following order :

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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(i) Rule made absolute.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
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			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
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$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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(ii) The writ petition is allowed.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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(iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'hindustan-aeronautics-limited-vs-gulab-singh'
$args = array(
	(int) 0 => '375766',
	(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
)
$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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(iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
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(v) No costs.

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	'title_for_layout' => 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '375766',
			'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
			'appealno' => 'Writ Petition No. 6514/85',
			'appellant' => 'Hindustan Aeronautics Limited',
			'authreffered' => '',
			'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
			'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
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			'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '1986-01-17',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'M. Rama Jois, J.',
			'judgement' => '<p style="text-align: justify;">1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p style="text-align: justify;">2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p style="text-align: justify;">'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p style="text-align: justify;">During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p style="text-align: justify;">S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p style="text-align: justify;">The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p style="text-align: justify;">2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p style="text-align: justify;">1. Your pay cover for the month of August 1981; </p><p style="text-align: justify;"> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p style="text-align: justify;"> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p style="text-align: justify;"> 3. You were thus indulging in money-lending to employees within the company premises. </p><p style="text-align: justify;"> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p style="text-align: justify;"> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p style="text-align: justify;"> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p style="text-align: justify;"> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p style="text-align: justify;">In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p style="text-align: justify;">3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p style="text-align: justify;">4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p style="text-align: justify;">5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p style="text-align: justify;">i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p style="text-align: justify;"> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p style="text-align: justify;">In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p style="text-align: justify;">'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p style="text-align: justify;">Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p style="text-align: justify;">6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p style="text-align: justify;">(i) Gambling, </p><p style="text-align: justify;"> (ii) Money-lending, </p><p style="text-align: justify;"> (iii) Doing any other private business. </p><p style="text-align: justify;">7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p style="text-align: justify;">8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p style="text-align: justify;">9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p style="text-align: justify;">10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p style="text-align: justify;">11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p style="text-align: justify;">'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p style="text-align: justify;">Again, before the Inquiring Authority, he stated thus : </p><p style="text-align: justify;">'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p style="text-align: justify;"> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p style="text-align: justify;">Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p style="text-align: justify;">'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p style="text-align: justify;">12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p style="text-align: justify;">I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p style="text-align: justify;">I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p style="text-align: justify;">13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p style="text-align: justify;">'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p style="text-align: justify;">14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p style="text-align: justify;">15. In the result, the domestic inquiry is held to be valid.' </p><p style="text-align: justify;">In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p style="text-align: justify;">14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p style="text-align: justify;">15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p style="text-align: justify;">16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p style="text-align: justify;">17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p style="text-align: justify;">18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p style="text-align: justify;">19. In the result, I make the following order : </p><p style="text-align: justify;">(i) Rule made absolute. </p><p style="text-align: justify;"> (ii) The writ petition is allowed. </p><p style="text-align: justify;"> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p style="text-align: justify;"> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p style="text-align: justify;"> (v) No costs. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
			'ratiodecidendi' => '',
			'respondent' => 'Gulab Singh and ors.',
			'sub' => 'Labour and Industrial',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'hindustan-aeronautics-limited-vs-gulab-singh',
	'args' => array(
		(int) 0 => '375766',
		(int) 1 => 'hindustan-aeronautics-limited-vs-gulab-singh'
	)
)
$title_for_layout = 'Hindustan Aeronautics Limited Vs Gulab Singh and ors - Citation 375766 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '375766',
		'acts' => '<a href="/act/51293/industrial-disputes-act-1947-complete-act">Industrial Disputes Act, 1947</a> - Sections 10, 11A and 33(2)',
		'appealno' => 'Writ Petition No. 6514/85',
		'appellant' => 'Hindustan Aeronautics Limited',
		'authreffered' => '',
		'casename' => 'Hindustan Aeronautics Limited Vs. Gulab Singh and ors.',
		'casenote' => 'Labour and Industrial - dismissal - Section 33 (2) (b) of Industrial Disputes Act, 1947 - petition for quashing Order of Tribunal rejecting application made under Section 33 (2) (b) seeking approval for dismissal from service of first respondent - records revealed domestic enquiry held against workman was valid - as per standing orders doing money lending in factory premises was misconduct - as such view of Tribunal that no misconduct was committed by first respondent was untenable - petition allowed.
HELD See paras 14 and 15.


 - Section 115: [N.K. Patil, J] Revision -  Dismissal of execution petition holding that execution petition filed by petitioners not maintainable  Held,  The Executing Court is not justifiable in dismissing  the execution petition as not maintainable in the present form, especially when there is a crystal clear direction issued by this Court, stating that, while delivering possession of 1acre 30 gunats, the earlier enjoyment of 20 guntas by the first petitioner on the Northern side and 19 guntas by second plaintiff in the Southern side shall be delivered as far as possible, taking into consideration the equity. -- Section 115: Executing Court dismissing the Execution Petition as not maintainable inspite of clear instructions of the High Court  Order of Execution Court was set aside and matter remitted to the Execution Court.  -  Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows :According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. 5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct :i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. I am a poor man having the responsibility of a big family; ' I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows :He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => ''Sub : Charge-sheet
Ref : Suspension Order No. A/A
      PO-III 200/254/81
      dated 10.9.1981.;S. No.      Name and B. No.                             Amount
                                                          Rs.
1.        R. Kanakasabapathy     1329/51923-95            75
2.        Vekatappa               '   55471-39            40
3.        T. N. Iswara            '   55733-29           110
4.        S. Muniswamy            '   55774-67           130
5.        D. N. Gangadhara        '   56367-67            22
6.        K. S. Poovaiah          '   55494-67           165
7.        Mohammed Ishaq          '   58115-47           120
8.        D. R. Swamy             '   41345-28            50
9.        V. S. Kannan            '   55760-45            70
                                                        -------
                                                         782
                                                        -------',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1986-01-17',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M. Rama Jois, J.',
		'judgement' => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. </p><p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : </p><p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.</p><p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. </p><p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------</p><p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. </p><p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. </p><p>1. Your pay cover for the month of August 1981; </p><p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. </p><p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. </p><p> 3. You were thus indulging in money-lending to employees within the company premises. </p><p> 4. The above constitute acts of misconduct under the following clauses of standing orders : </p><p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. </p><p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. </p><p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' </p><p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. </p><p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. </p><p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. </p><p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : </p><p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. </p><p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. </p><p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : </p><p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' </p><p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. </p><p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : </p><p>(i) Gambling, </p><p> (ii) Money-lending, </p><p> (iii) Doing any other private business. </p><p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). </p><p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. </p><p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. </p><p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. </p><p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : </p><p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' </p><p>Again, before the Inquiring Authority, he stated thus : </p><p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. </p><p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' </p><p>Finally, in his reply to the show-cause notice, the first respondent stated thus : </p><p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. </p><p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. </p><p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' </p><p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. </p><p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : </p><p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. </p><p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. </p><p>15. In the result, the domestic inquiry is held to be valid.' </p><p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. </p><p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. </p><p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. </p><p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. </p><p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. </p><p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. </p><p>19. In the result, I make the following order : </p><p>(i) Rule made absolute. </p><p> (ii) The writ petition is allowed. </p><p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. </p><p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. </p><p> (v) No costs. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant',
		'ratiodecidendi' => '',
		'respondent' => 'Gulab Singh and ors.',
		'sub' => 'Labour and Industrial',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/375766/hindustan-aeronautics-limited-vs-gulab-singh'
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$content = array(
	(int) 0 => '<p>1. The management of Hindustan Aeronautics Limited has presented this petition praying for quashing the order of the Industrial Tribunal, Bangalore, rejecting the application of the petitioner made under section 33(2)(b) of the Industrial Disputes Act ('the Act' for short) seeking approval for the dismissal from service of the first respondent. ',
	(int) 1 => '<p>2. The facts of the case, in brief, are as follows : Respondent No. 1 was a workman in the service of the petitioner. Disciplinary proceedings were instituted against him with the issue of the charge sheet dated 17th September, 1981. It reads : ',
	(int) 2 => '<p>'Sub : Charge-sheetRef : Suspension Order No. A/APO-III 200/254/81dated 10.9.1981.',
	(int) 3 => '<p>During the month of August, 1981, you were posted to work in the second shift 16.15 hours to 0015 hours. On 31st August, 1981 which was a salary disbursement day, you entered the factory at about 9.15 a.m. and drew Rs. 295 as your salary. At about 10.30 a.m. on the same day, you went to Drop Tank Shop and were seen by Vigilance Guards collecting your dues together with interest towards the money you had lent in the department to the following employees of your department. ',
	(int) 4 => '<p>S. No. Name and B. No. AmountRs.1. R. Kanakasabapathy 1329/51923-95 752. Vekatappa ' 55471-39 403. T. N. Iswara ' 55733-29 1104. S. Muniswamy ' 55774-67 1305. D. N. Gangadhara ' 56367-67 226. K. S. Poovaiah ' 55494-67 1657. Mohammed Ishaq ' 58115-47 1208. D. R. Swamy ' 41345-28 509. V. S. Kannan ' 55760-45 70-------782-------',
	(int) 5 => '<p>The amount of money collected by you from each of the above mentioned employees is as shown against their names. ',
	(int) 6 => '<p>2. You were then taken to the Vigilance Office where the following documents along with Rs. 1,106 i.e., Rs. 295 and Rs. 782 and Rs. 29, which you had on your person when you entered factory were seized under mahazar. ',
	(int) 7 => '<p>1. Your pay cover for the month of August 1981; ',
	(int) 8 => '<p> 2. Employee Gate Pass dated 31st March, 1981 authorising you to go out after drawing your salary. ',
	(int) 9 => '<p> The sum of Rs. 295 which was your salary for the month of August was returned to you at the same time after obtaining you acknowledgment of the mahazar. ',
	(int) 10 => '<p> 3. You were thus indulging in money-lending to employees within the company premises. ',
	(int) 11 => '<p> 4. The above constitute acts of misconduct under the following clauses of standing orders : ',
	(int) 12 => '<p> Clause 25(19) 'Gambling, money-lending or doing any other private business within the company's premises. ',
	(int) 13 => '<p> Clause 25(8) : Breach of standing orders or rules or any law applicable to the establishment. ',
	(int) 14 => '<p> 5. You are, therefore, called upon to submit your explanation in writing on or before.... as to why disciplinary action should not be taken against you. In case no explanation is received within the stipulated period, it will be presumed that you have no explanation to offer and further action as deemed fit will be taken against you.' ',
	(int) 15 => '<p>In his reply to the charge-sheet, vide Annexure-B, dated 29th September 1981, the first respondent did not dispute the allegations levelled against him. Thereafter, an enquiry was held by the Inquiring Authority nominated by the petitioner. In the course of the inquiry also, the first respondent pleaded for a lenient treatment. The Inquiring Authority held that the first respondent was guilty of the charge framed against him. Final show-cause notice was also issued to the first respondent proposing to impose the penalty of dismissal from service. Again, in his reply dated 2nd November, 1981 (annexure-F), the first respondent did not dispute the findings recorded against him, but pleaded for mercy. The management, however, proceeded to impose the penalty of dismissal from service. As certain industrial dispute between the petitioner and their workmen with which the first respondent was connected was pending before the Industrial Tribunal, the petitioner made an application under S. 33(2)(b) of the Act seeking its approval for the order by which penalty of dismissal from service was imposed against the first respondent. A preliminary objection was raised by the first respondent to the effect that the domestic inquiry was defective. This plea of the first respondent was rejected by the Industrial Tribunal by its order dated 25th January, 1984 (annexure-K). However, by final order dated 28th January, 1985, the Tribunal held that the first respondent had not indulged in money-lending transaction and, therefore, he was not guilty of the charge. Aggrieved by the said order, the petitioner has presented his petition. ',
	(int) 16 => '<p>3. Sri H. B. Datar, learned counsel appearing for the petitioner, submitted that the impugned order of the Industrial Tribunal suffered from patent error of law, in that, not only for the reason that the Tribunal had failed to notice that in all the statements made before the Inquiring Authority, the first respondent was admitted his guilt and that was one of the grounds on which the domestic enquiry was held valid, but also for the reason that in the face of the glaring facts about the first respondent indulging in money-lending, the Tribunal recorded a finding that he was only collecting money which he had given as hand loan and not in the course of money-lending business. ',
	(int) 17 => '<p>4. Sri S. Krishnaiah, learned counsel appearing for the first respondent, submitted as follows : According to the standing orders, the acts complained of against the first respondent did not constitute a misconduct. The mere fact that the first respondent had lent money during the period of strike to his co-workmen when they were in difficulties and collected repayment within the factory premises constituted no misconduct within the meaning of the standing orders. As held by the Supreme Court in the case of Shamnuggur Jute Factory Co. Ltd. v. Their Workmen [1964-I L.L.J. 634], collecting repayment voluntarily made by another workman to whom money had been lent to meet his personal needs cannot, by any stretch of imagination, be regarded as misconduct and, therefore, in the present case, the view taken by the Industrial Tribunal is in accordance with law. ',
	(int) 18 => '<p>5. Elaborating the submission that the acts complained of against the first respondent did not amount to misconduct, learned counsel submitted that the following two ingredients were essential to constitute misconduct : ',
	(int) 19 => '<p>i) A workman should have indulged in both gambling and money-lending and the money-lending must be habitual and in the nature of a regular business. ',
	(int) 20 => '<p> ii) Money-lending must be within the factory premises. Mere collecting repayment of money lent outside does not constitute money-lending. ',
	(int) 21 => '<p>In order to appreciate the connection, it is necessary to set out the relevant clause of the standing orders. Clause 25(19) of the standing order reads : ',
	(int) 22 => '<p>'25(19). Gambling and money-lending or doing any other private business within the company's premises.' ',
	(int) 23 => '<p>Learned counsel pointed out that the acts of gambling and money-lending together constitute misconduct and as there was no allegation of gambling against the first respondent, no charge of misconduct could have been framed against the first respondent within the scope of the above standing order. I see no merit in this submission. It is true that the word 'and' is used between the words 'Gambling' and 'money-lending'. In the context, each of the acts, i.e., gambling or money-lending, is to be regarded as misconduct and the word 'and' in the context can only be understood as 'or'. It is difficult to accept the interpretation placed on the standing order by the learned counsel for the first respondent that the standing order is intended to make the act of gambling together with money-lending alone a misconduct. ',
	(int) 24 => '<p>6. Similarly, the contention of the first respondent that money-lending, in order to constitute misconduct, should be a regular business is also untenable. In the standing order, three misconducts are specified, namely : ',
	(int) 25 => '<p>(i) Gambling, ',
	(int) 26 => '<p> (ii) Money-lending, ',
	(int) 27 => '<p> (iii) Doing any other private business. ',
	(int) 28 => '<p>7. If any one of these acts is committed by any workman within the company's premises, he commits misconduct. In other words, indulging gambling or money-lending outside the factory premises does not constitute misconduct falling within clause 25(19) of the certified standing orders. Therefore, if a workman indulges in money-lending within the company's premises, it constitutes misconduct within the meaning of clause 25(19). ',
	(int) 29 => '<p>8. The next limb of the submission of the learned counsel for the first respondent was that, even according to the facts stated in the chargesheet, the first respondent only collected money which he had lent to several workmen outside the factory and, therefore, the charge on the face of it fails for the reason that money was not lent within the factory premises. According to the learned counsel, receiving repayment of money lent within the factory premises constitutes no misconduct for the reason, it is only lending which falls within the scope of clause 25(19) of the standing orders and not receiving the money lent. The above submission of the learned counsel is also fallacious. Money-lending transaction includes both giving the money on loan to a person and receiving repayment of the money so lent from such person, i.e., the debtor. Therefore, the act of paying money as loan to another person as also collecting repayment both fall within the expression 'money-lending'. Admittedly, the first respondent had lent money to a number of workmen referred to in the charge-sheet on exorbitant interest and had collected repayment within the factory premises. Therefore, the submission that the first respondent had merely collected the money within the factory premises and it does not constitute misconduct within the meaning of clause 25(19) of the standing orders is untenable. ',
	(int) 30 => '<p>9. Learned counsel for the first respondent strenuously contended that it was necessary for the petitioner to have proved the misconduct in a regularly constituted inquiry, but, in the present case, though an inquiry had been instituted, the finding was based on mere admission, though there was actually no such admission. Learned counsel submitted that the fact that the first respondent had admitted that he had collected repayment of certain amounts as specified in the charge-sheet and from persons specified therein was not sufficient to hold that the first respondent had admitted his guilt and, therefore, there was no ground to interfere with the order of the Industrial Tribunal. ',
	(int) 31 => '<p>10. As far as the position in law is concerned, there is no doubt that if a workman against whom disciplinary proceedings are instituted admits his guilt, there is no necessity for the management to hold any inquiry. This position is clear from the following two decision : 1. Central Bank of India Limited v. Karunamoy Banerjee, [1968] 32 FJR 481, and 2. Associated Cement Companies Ltd. v. Abdul Gaffar, [1980] Lab IC 683. ',
	(int) 32 => '<p>11. The next question for consideration is whether the learned counsel for the first respondent is right in saying that he had not admitted the guilt. In order to reject the contention of the learned counsel for the first respondent as baseless, it is only necessary to refer to the relevant portions of the statement made by the first respondent before the Inquiring Authority. In his statement dated 29th September, 1981, the first respondent stated as follows : ',
	(int) 33 => '<p>'Sir, during the strike/lock-out period my friend was in trouble of finance and I had given him a hand loan of some amount. This is only on the friendship and humanitarian consideration that he was in distress and there is no one to help him. So I have given the amount for his immediate use. A part of this amount was collected by me on 31st August, 1981 and unfortunately the vigilance has taken this issue as a serious offence which I was not aware and I was caught by them thinking that it is a mistake. I do hereby understand that without my knowledge I have done this mistake and I assure you that I will not commit such type of mistakes in future. So I request you to kindly excuse me this time and revoke the suspension order for which act of kindness I shall be ever remain grateful to you Sir.' ',
	(int) 34 => '<p>Again, before the Inquiring Authority, he stated thus : ',
	(int) 35 => '<p>'On 31st August, 1981, I came to the factory at about 9.15 a.m. and drew Rs. 295 as my salary. I admit that I collected Rs. 782 from nine employees of Drop Tank Shop as stated in the charge sheet, exhibit P-1, as dues together with interest towards the money that I lent to them during the strike period and later. I charge interest at the rate of 10% per month. At about 11 hours on 31st August, 1981, I took gate pass to go to the Main Gate Vigilance personnel. I was asked to come to the Vigilance Office where I was asked to produce the total amount I had with me. The total sum of Rs. 1,106 which I had with me was seized under mahazar on which I signed. My statement was also taken. Rs. 295 which was salary for the month of August, 1981, was returned to me. Sri P. Dhanasekharan, officiating Deputy Manager, Drop Tank Assy. Shop was also present. ',
	(int) 36 => '<p> I submit that I have committed this mistake unknowingly and I assure that I will not repeat in future. I request you to kindly excuse me for this lapse.' ',
	(int) 37 => '<p>Finally, in his reply to the show-cause notice, the first respondent stated thus : ',
	(int) 38 => '<p>'I beg to submit that at all stages I had accepted the guilt and I never proved myself as innocent of the charges. I had also submitted that I was not aware of the consequence of this deal and hence continued. I am a poor man having the responsibility of a big family; if I am thrown out as proposed, my whole family would be on streets for no fault of theirs, and my ignorance of the consequence would leave them on the street. As I have been sufficiently punished and had mental torture for all these days, I dare not commit any act of subversion of discipline in the factory. With this assurance I beg your mercy and goodself to be kind enough to pardon me and (not) to impose on me this highest punishment of dismissal. I pray for your mercy and request you to kindly see my case sympathetically. At least in the interest of my innocent family members on whom this punishment proposed to be imposed will come very heavily as a death blow. ',
	(int) 39 => '<p>12. I, therefore, with all humbleness and reformed mental, would pray your goodself for mercy and request of revoking the proposed punishment. ',
	(int) 40 => '<p>I further pray your goodself that any minor punishment which would meet the ends of justice may be imposed on me.' ',
	(int) 41 => '<p>I fail to see as to how the learned counsel for the first respondent could advance a contention before this Court that the first respondent had not admitted his guilt. In every one of the statements the first respondent has admitted his guilt. In particular, in the final statement he accepted his guilt and requested the management to impose a minor penalty. Therefore, the submission made by the learned counsel for the first respondent is baseless. ',
	(int) 42 => '<p>13. It may also be seen that while rejecting the plea of the first respondent that the domestic inquiry held by the petitioner was invalid, the then Presiding Officer of the Industrial Tribunal, Sri B. N. Lalge, in his order dated 25th January, 1984 (annexure-K), observed as follows : ',
	(int) 43 => '<p>'He has reiterated that on all the occasions he has accepted his guilt and since he was poor and ignorant he prays for mercy. In the first explanation, Ext. A-4, before the Enquiry Officer as per Ext. A-7 and in the final explanation, Ext. A-10, the workman concedes that he has indulged in money-lending business within the premises of the factory. I do not find that the Enquiry Officer and the Management had misrepresented or indulged in any other unbecoming acts in getting admission or concession from the workman. The order of dismissal, Ext. A-11, cannot, therefore, be assailed. ',
	(int) 44 => '<p>14. The standing orders at Ext. A-12 show that as per clause 25(19), doing money-lending in the factory premises is a misconduct and clause 25(8) deals with the breach of any rules in the standing orders. The domestic inquiry held against the workman is valid and in accordance with law. ',
	(int) 45 => '<p>15. In the result, the domestic inquiry is held to be valid.' ',
	(int) 46 => '<p>In the face of the above order, it appears to me that the only order that could have been passed by the Industrial Tribunal was to grant the application made by the petitioner, but nevertheless Sri R. Ramakrishna, the present Presiding Officer of the Industrial Tribunal, completely overlooked the pleading of guilt by the first respondent as also a finding to that effect in the order of the predecessor and proceeded to hold that the collecting of money lent outside the factory did not amount to misconduct on the ground that it was not in the nature of money-lending business without noticing what is misconduct under the standing order is act of money-lending and not money-lending business. ',
	(int) 47 => '<p>14. Learned counsel for the respondent, however, submitted that the view taken by the Tribunal was correct and in support of the submission relied on the judgment of the Supreme Court in Remington Rand of India v. Tahir Ali [1975-II L.L.J. 376], in which the Supreme Court held that the act of the workman concerned in selling and servicing a single typewriter did not amount to misconduct of doing the business of selling and/or repairing typewriters. The decision is not apposite to this case. As pointed out earlier, under the Standing Order 25(19), what is misconduct is money-lending within the factory premises. When money-lending is regarded as misconduct under the standing order, even a single transaction of money-lending would amount to misconduct as is clear from the judgment of the Supreme Court in the case of Digwadh Colliery v. Ramji Singh [1964-II L.L.J. 143]. In the said case, the Supreme Court held that when according to the standing orders money-lending transaction with a subordinate employee amounted to misconduct, even a single transaction was sufficient to hold that the person was guilty of misconduct. ',
	(int) 48 => '<p>15. In the present case, the first respondent had lent money to as many as 9 persons and according to his statement made before the Inquiring Authority on 14th October, 1985, extracted earlier, he had charged interest at 10 per cent., per month, which amounts to 120 per cent. per annum. He has also admitted in his statement dated 2nd November, 1981 (annexure-F) that not only he had lent money to several persons during the period of strike, but he continued it subsequently as he was not aware of the consequences of the deal. In the face of these glaring facts and admissions, the view taken by the Tribunal that no misconduct was committed by the first respondent within the meaning of the standing order is patently untenable and perverse. ',
	(int) 49 => '<p>16. Whatever that may be, the quantum of penalty imposed appears to be excessive, as pleaded by the first respondent. It is not in dispute that he had put in a little more than 20 years of loyal service and he had no antecedent bad record of service. I am convinced that, having due regard to more than 20 years of unblemished service nut in by the first respondent, his repentance for his acts of money-lending, his plea that he did so without fully understanding the implications of the standing order and also his straightforward conduct in praying for imposing some minor penalty, the submission made by the learned counsel for the first respondent that the petitioner should not have proceeded to impose the extreme penalty of dismissal from service, has great force, for, the disciplinary power must be used to impose a just punishment to a person who had acted unjustly. ',
	(int) 50 => '<p>17. Unfortunately for the first respondent, this is a proceeding arising out of S. 33(2)(b) of the Act. If only the Legislature had incorporated a provision in S. 33(2)(b) of the Act that proceedings under this provision should be treated as a reference under S. 10 of the Industrial Disputes act, as suggested by this Court in the case of Workmen of Mysore Lamp Works v. State of Karnataka [1985] 65 FJR 343, it would have been possible for this Court to modify the penalty by invoking the provisions of S. 11A of the Act. In the absence of any such provision, in a proceeding arising under S. 33(2)(b) of the Act, the Labour Court/Industrial Tribunal as well as the High Court are helpless because they cannot interfere with the quantum of penalty even when they are convinced that the punishment is excessive. Even now it is a matter for serious consideration by the Government. It is true that even after the application under S. 33(2)(b) of the Act is granted, the first respondent can raise an Industrial Dispute and the Government is under an obligation to refer such dispute for adjudication at least regarding quantum of penalty in view of the decision reported in Workmen of Mysore Lamp Works v. State of Karnataka (supra). But that would delay the resolution of the dispute to the inconvenience and hardship of the workman as also of the management. ',
	(int) 51 => '<p>18. However, what has happened during the pendency of this petition is that at the instance of the trade union, the dispute concerning imposition of penalty of dismissal from service by the petitioner against several workmen has been referred for industrial adjudication and the dispute concerning the dismissal of the first respondent happens to be one of them. Therefore, the first respondent is at liberty to take all such grounds as are available to him before the Labour Court, to which the dispute has already been referred for adjudication. ',
	(int) 52 => '<p>19. In the result, I make the following order : ',
	(int) 53 => '<p>(i) Rule made absolute. ',
	(int) 54 => '<p> (ii) The writ petition is allowed. ',
	(int) 55 => '<p> (iii) The impugned order of the Industrial Tribunal dated 28th January, 1985 (annexure-L), is set aside. ',
	(int) 56 => '<p> (iv) The Industrial Tribunal is directed to accord approval to the application of the petitioner for the order imposing the penalty of dismissal from service against the first respondent. ',
	(int) 57 => '<p> (v) No costs. <p>',
	(int) 58 => '<p>'
)
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Subject	Labour and Industrial
Court	Karnataka High Court
Decided On	Jan-17-1986
Case Number	Writ Petition No. 6514/85
Judge	M. Rama Jois, J.
Reported in	[1986(52)FLR443]; ILR1987KAR353; (1986)IILLJ95Kant
Acts	Industrial Disputes Act, 1947 - Sections 10, 11A and 33(2)
Appellant	Hindustan Aeronautics Limited
Respondent	Gulab Singh and ors.

Hindustan Aeronautics Limited Vs. Gulab Singh and ors. - Court Judgment