Satyanarayana vs Dock Labour Board, Visakhapatnam and Another

The petitioner is a watchman. He who had been residing in the Board''s quarters No. T. 1/13 at Kailasapuram, went to quarters No. T/1/14 on 1st October 1984 at about 8.30 p.m. and put off the fan switch and bent the fan blades in the said quarters and he also went to T. 1/15 quarters and called out the inmates by kicking on the door, and thereby he caused damage to D.L.B. Property. Accordingly he was charged for the above misconduct. An Enquiry Officer was appointed. On enquiry it was found by the Enquiry Officer that the petitioner has committed the said misconduct. As a result, in the impugned order dated 24th May 1985, a punishment of withholding two annual increments without cumulative effect was awarded. Assailing the legality thereof, this writ petition has been filed.

The contention of Sri V. Venkataramana, learned counsel for the petitioner, is that the Visakhapatnam Dock Labour Board Staff (Recruitment and Conditions of Service) Rules, 1970 (for short "the Rules") do not provide any misconduct as regards the behaviour of an employee of the Dock Labour Board outside the office hours to be a misconduct. Therefore, though the conduct of the petitioner may be unbecoming, still it is not a misconduct. Thereby the petitioner is not liable to punishment and the same is without any authority of law.

Sri. K. Srinivasa Murthy, learned counsel for the respondents, sought support for this order on the premise that clause 25 of the Rules provides that in the absence of any specific rules, C.C.S. Conduct Rules would mutatis mutandis apply to the employees of the first respondent. Clause 3(iii) of the C.C.S. Conduct Rules provides that the Government servant shall do nothing which is unbecoming of a Government servant. Clause 20 of the Allotment Residences Rules 1977 provides that where the conduct of an allottee is found to be improper of conducts himself in a manner which in the opinion of the Chairman is prejudicial to the maintenance of harmonious relations with his neighbours, apart from the cancellation of his allotment, he is liable to the disciplinary action. The petitioner acted in an unbecoming manner by damaging the property of the neighbours. In fact the property belongs to the respondents, and it is, thereby, an unbecoming conduct on the part of the petitioner amenable to the disciplinary jurisdiction, and the misconduct has been found by the disciplinary authority and punishment was awarded accordingly. There is no manifest error warranting interference or lack of jurisdiction to impose the punishment.

The respective contentions give rise to the question whether the conduct of an employee outside the working hours in behaving in a manner which is unbecoming of a decent man by damaging the property of the neighbours or causing nuisance to the neighbours would constitute misconduct under the Rules. Admittedly, the Rules do not define such a conduct to be a misconduct amenable to disciplinary action. The Allotment Rules are only relating to the allotment of the quarters belonging to the first respondent and the manner of maintenance of the quarters so allotted in that regard. Clause 20 of the Allotment Rules provides that the behaviour of the allottee should be such that harmonious relationship should be maintained among the allottees. If the behaviour found by the Chairman should be that it impedes harmonious relations with the neighbours and the conduct is unbecoming of such harmonious human relations then two courses are open to the Chairman. Firstly, he may cancel the allotment made, and secondly, he may take disciplinary action against the allottee. Such a disciplinary jurisdiction is found only under the C.C.S. Conduct Rules and not elsewhere. The learned counsel for the respondents sought to rely on the C.C.S. Conduct Rules as a step-in-aid for taking disciplinary action against the petitioner. Undoubtedly, Clause 26 of the Rules provides that in the absence of definite misconduct, the conduct of the employees of the first respondent should be on par with the conduct expected of from the employees of the Central Government as envisaged under the C.C.S. Conduct Rules. But the Supreme Court in Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, a Bench of three Judges speaking through Desai, J., held that where the Standing Orders of an establishment provide that a certain act would constitute misconduct if committed within the premises of the establishment or in the vicinity thereof, then any misconduct committed anywhere irrespective of the time-place content, where and when it is committed cannot be comprehended, to be the misconduct within the meaning of the Standing Orders merely because it has some remote impact on the peaceful atmosphere in the establishment. The words ''committed within the premise of the establishment or in the vicinity thereof are words of limitation and they must cut down the operation of the Standing Order. The misconduct prescribed in a Standing Order which would attract a penalty has a casual connection with the place of work as well as the time at which it is committed which would ordinarily be within the establishment and during duty hours. The casual connection in order to provide linkage between the alleged act of misconduct and employment must be real and substantial, immediate and proximate, and not remote or tenuous.

In A. L. Kalra v. P. & E. Corporation of India Ltd. (1984 II LLJ 1986), the same Bench considered an analogous situation. There an employee of a Public Sector Undertaking was charged for not refunding the advance taken for the house building within the same stipulated under the Rules farmed for granting House Building Advance, the act of which was deemed to be misconduct, and he was removed from service on unbecoming conduct. It was held that he failed to maintain absolute integrity and it was thereby misconduct. In that context, Desai, J, held that Rule 4(1)(i) of the project and Equipment Corporation of India Limited Employees (Conduct, Discipline and Appeal) Rules, 1975 provides that every employee shall at times maintain absolute integrity and do nothing which is unbecoming of a public servant and that rule prescribes various misconducts for which an action could be taken governed by the Rules and it was held that the Rules made a clear distinction about what would constitute misconduct and (at 193).

"A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconducts in Rules 5. Any attempt to telescope R. 4 into R. 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may very with individuals and expose employees to vigorous of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decent decision of this court in Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, , where this Court held that everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex-post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly failing within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Rule 4 styled as "General specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4, would be per se a misconduct in any of the sub-clause of Rs. 5 which specifies misconduct. It would therefore appear that even if the facts alleged in the two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that R. 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee, for misconduct committed by him. Rule 4 does not specify a misconduct.

A reading of ratio would clearly establish that the Rules must specify the misconduct with precision. Otherwise, they would be exposed to a grey area not amenable to objective evaluation, and the employee can be lugged in within the meaning of every conduct which entails with penal consequences but with misappropriation and vagueness. Thereby he is exposed to penal consequences of removal from service and such grey area cannot be given to the employer to find a ground to take disciplinary action against the employees. In M. V. S. Prasad Rao v. State of A.P. (1986) (1) A.L.T. 453, A Division Bench of this Court, to which I was a member, considered the question of alleged malpractice in writing an examination whether it constitutes a misconduct within the meaning of the All India Service (Conduct) Rules, 1968. In that regard it was held that there must be interconnection of the offending conduct and the duty a member is to discharge or lend colour of reasonable relationship between the two. In such an area, the operation of Rule 3(1) of the Conduct Rules and Rules 3 of the Discipline Rules could be projected. It is purely a private conduct when the link is snapped. The very threat of disciplinary action even in respect of private conduct unconnected or unrelated to duty or responsibility as a member of a cadre would be a haunting ghost. It would hinder a member even to have social intercourse as a citizen and hampers his pursuits to develop his personality and stifles his intellectual advancement. It impedes his adventitious thinking, intellectual speaking or writing. Instead of a pipeline for happy pursuits. It becomes a deterrent dragon practically crippling his personality and destroys his dignity of person. The threat of disciplinary action would also operate a parallel spying project and persons jealous of him or inimically disposed or disgruntled elements become unsolicited plain clothes detectives. Ears are cooked to concocted palpably palatable tell-tale stories of private life at once either to deter a member to discharge even lawful duties or induce higher-ups to take recourse to disciplinary route. If we lend credence to the contention of the State the pernicious effects referred to above would ensure offending his freedom enshrined in Article 19(1)(a) of the Constitution. In that connection it was held that writing an examination and the malpractice have no integral connection with the discharge of the duty and, therefore, it is not a misconduct. It is not a conduct unbecoming of an officer. The recent decision of the Supreme Court has not the effect, of the latter operation. But, nonetheless, the rational relation between the discharge of the duty and the private conduct should have integral connection between the conduct and the discharge of duties and every private conduct should not be lugged in for the misconduct for taking disciplinary action. In the light of the above legal position the question is whether the petitioner''s conduct would be liable to disciplinary action. As seen, the Rules do not provide for any misconduct of the private conduct and, therefore, in the absence of any misconduct expressly defined under the Rules the action taken by the respondents is clearly without authority of law.

Sri. K. Srinivasa Murthy, learned counsel for the respondents, placed, reliance on the judgment of the Supreme Court in Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., , in Agnani v. Badri Das & Others (1963 I LLJ684) and in Mahendra Singh Dhantwal Vs. Hindustan Motors Ltd. and Others, for the proposition that the definition of misconduct is only enumerative but not exhaustive and it is open to the respondent to fall back upon the Central Services'' Conduct Rules and Clauses 25 of the Rules to lug in the conduct of the petitioner to be a misconduct. I find it difficult to accept the contention. It is no doubt true that in the decisions in Agnani v. Badri Das & Others (supra) and M. S. Dantwal v. Hindustan Motors (supra) the supreme Court held that the definition could not be exhaustive and it was only enumerative. But in the absence of any definition itself, the ratio therein cannot be extended. It is not the case that during the working hours of the factory and within the factory premises the petitioner committed any misconduct or misbehaviour with any co-workman, etc. Under those circumstances, the ratio therein does not apply and there is no conflict of decisions in the view taken and the latest view taken by the Supreme Court. Under those circumstances, the question of referring to the Larger Bench to lay down the law does not arise. Even on wise the ratio including the obiter of the Supreme Court are binding on this court. Under those circumstances, I do not find any justification for making any reference to a Larger Bench.

The writ petition is accordingly allowed. No. costs, Advocate''s fee Rs. 350/-