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Judgment
S. Rajeswaran, J.—The management has filed the writ petition In W.P. No. 21813/2000 for the relief of writ of certiorari to quash the
award passed in I.D. No. 1/2000, dated 22.11.2000 by the 2nd respondent.
Writ Petition in W.P. No. 6320/2001 has been filed P.Chinnasamy,the workman for the relief of certiorarified mandamus, to call for the records
relating to I.D. No. 1/2000, dated 22.11.2000 on the file of the 2nd respondent, quash the same insofar as denying the half-backwages is
concerned and consequently seeking for reinstatement with full back-wages and other benefits.
Since the issue involved in both the writ petitions relate to the award passed in I.D. No. 1/2000, dated 22.11.2000 passed by the 2nd
respondent, both the writ petitions are taken together and common order is being passed with the consent of the learned counsel for both sides.
W.P. No. 21813/2000:- This writ petition has been filed against the award passed in I.D. No. 1/2000, wherein the 2nd respondent has passed
an order of reinstatement of the first respondent/workman by setting aside the order of removal from service passed by the disciplinary authority,
as confirmed by the appellate authority and further directions to the management to reinstate the 1st respondent with some other benefits. However
it is stated by the petitioner-management that no conditions have been stipulated by the 2nd respondent-tribunal that are to be followed. It is further
stated that the 1st respondent-workman was appointed in the Madras Atomic Power Project (as it was called by then) during March 1971. At the
time of appointment, he has made a declaration, in condition No. 9 which reads thus:-
No person who has more than one wife living shall be eligible for appointment to Government Services. A declaration to the effect that you are
unmarried or have only one wife living as the case maybe will have to be signed by you at the time of appointment (form enclosed). In the event of
declaration being found to be incorrect after your appointment in this Department you will be liable to be dismissed form service.
Accepting this declaration, the 1st respondent-workman has also signed the order on 3.3.1971 and entered into service. As per this if any
declaration is found to be incorrect, he could be removed from service. It is also stated that at the time of joining service in the family benefit
details, he has declared that he got married to one Kalyani and also indicated the names of P.C.lakshmi as his daughter and P.C.Devan as his son
born to him on 10.5.1973 and 15.7.1976 respectively. His entire family availed medical facilities provided by the management for all the family
members. According to the petitioner, he suddenly introduced another woman by name Mrs.S.Muthu and further introduced the names of
C.Premavathy, C.Thilakavathi, as daughters and C.Magesh as his son. These two daughters and a son were born through the second wife
S.Muthu. Thus the 1st respondent-workman had performed bigamous marriage while his first wife Mrs.Kalyani was alive. On the basis of the
information that the 1st respondent has contracted the second marriage when the first wife was alive and when the said marriage was subsisting, the
petitioner issued a charge sheet to the 1st respondent. A domestic enquiry was conducted by the enquiry officer by absorbing all the procedures.
The findings of the enquiry officer stood against the 1st respondent. On perusal of the record it was further found that the 1st respondent
nominated his first wife Kalyani as primary nominee, and for the purpose of L.T.C. and travelling allowance also, he had declared Mrs.S.Kalyani
as his wife, P.C.Lakshmi as his daughter and Master Devan as his son. He had further declared that the daughter and son are his legitimate children
born to his legally married wife Kalyani. While so, the 1st respondent had submitted a totally different nomination for Death-cum-Retirement
Gratuity declaring one Mrs.Muthu as his wife the primary nominee and introduced P.C.Lashmi and P.C.Devan as alternative nominees. It is also
stated that the 1st respondent had admitted the 2nd marriage and the birth of the children through her. Therefore, on the basis of the materials and
records available, the enquiry officer found the 1st respondent-workman was guilty of all charges. Consequently, the disciplinary authority passed
an order on 10.10.1998, after observing all the formalities and fully adopting the principles of natural justice, removing him from service. An appeal
was filed by the 1st respondent to the appellate authority which also confirmed the order of removal. Thereafter, it is submitted that he raised an
industrial dispute in I.D. No. 1/2000 before the 2nd respondent, who passed an award on 22.11.2000, which is impugned in this writ petition in
W.P. No. 21813/2000.
It is seen from the impugned award passed by the 2nd respondent-tribunal that the enquiry was very fair and proper and there was no infirmity
or any violation in the manner in which the same was conducted. Thereafter, the 2nd respondent ultimately passed the impugned award directing
reinstatement of the 1st respondent in service with some conditions imposed by the petitioner-management on only one ground, namely, the
Industrial Employment (Standing Orders) Act 1946 (hereinafter called as the Act) which contains the Rules framed by the Central Government
which is also called as the Industrial Employment (Standing Orders Central Rules 1946, (hereinafter called as the Rules) does not provide the
bigamous marriage or getting children through such a marriage as a misconduct. In short, the 2nd respondent-tribunal has held that the act of
marrying and getting children through bigamous marriage during the lifetime of the first wife will not amount to any act or omissions so as to treat
the same as a misconduct in terms of the standing orders/rules.
Learned counsel for the petitioner-management submitted that though the Standing Orders as stated by the second respondent-tribunal would
not specify the bigamous marriage as a misconduct, it is a misconduct and a serious offence in general law. The provisions of the Hindu Marriage
Act, 1955 stipulate that bigamous marriage is prohibited. Moreover, he also referred to the Criminal Procedure Code, Chapter XIV relating the
prosecution for offences against marriage u/s 198. Learned counsel has also referred to the charge memo dated 18.6.1996, which reads thus:-
ARTICLE I
That the said Shri P.Chinnaswamy, while functioning as Tradesman had married another woman viz., Smt. Muthu while his first wife Smt.Kalyani
was living. As per the details of Master Medical Card, two children were born to him out of his first wife, the first child in the year 1973 and the
other on 15.7.1976. As per the details given by him later on three children were born to him through Smt. Muthu, his 2nd wife with their dates of
birth as 29.5.74, 3.8.76 and 20.12.78.
That the said Shri P.Chinnaswamy by marrying another woman while his first is alive has acted in a manner i.e., unbecoming of a Corporation
employee.
ARTICLE II
That the said Shri P.Chinnaswamy while functioning as Tradesman in MAPS suppressed the facts of his 2nd marriage with another woman viz.,
Muthu and begetting following children while his first wife was also living.
C.Premavathy Daughter
C.Thilagavathy -do-
C.Makesh Son
Prior to introduction of CHS Scheme in DAE hospital i.e., on 16.5.85 he applied for availing medical facilities for these children whose names
were included in the Master card by deliberately excluding the name of his second wife Smt. Muthu. Later on when CHSS was introduced in the
DAE hospital, he applied for inclusion of the following persons as his dependants who are being the first wife and children born out of her:-
P.Chinnaswamy Self 15.6.45
Smt.Kalyani wife 43 years
P.C.Lakshmi daughter 10.5.73
P.C.Devan son 15.7.76
That the said Shri P.Chinnaswamy has by suppressing the facts of his 2nd marriage with another woman and begetting children has acted in a
manner that is unbecoming of a Corporation employee.
ARTICLE III:
That the said Shri P.Chinnaswamy while functioning as Tradesman in MAPS had submitted a nomination dated 23.7.73 declaring Smt.Kalyani, his
1st wife as primary nominee for the purpose of Provident Fund and had included her as a family member for the purpose of LTC/TA. For availing
medical facility at the first instance he declared Smt.Kalyani as his wife and P.C.Lakshmi as his daughter. Subsequently for availing medical
facilities, he included Ms.Thilagavathy, Ms.Premavathy and Master Makesh by declaring them as his legitimate children although they were born
through his second wife. During July 1987 he submitted a nomination dated 14.7.87 for Death -cum- Retirement Gratuity declaring Smt.Muthu as
his wife and as primary nominee and C.Premavathy, C.Thilagavathy, C.Makesh as alternative nominees. Later, when he was absorbed in NPCIL,
he gave nomination in favour of his 2nd wife and children born out of 2nd wife leaving behind the first wife and children born out of 1st wife.
It is further submitted that in the letter dated 26.3.1997 written by the 1st respondent-workman to the Department, wherein he has categorically
admitted the offence committed by him and pleads for forgiveness based on his past experience in the petitioner-department. Learned counsel for
the petitioner has also referred to the claim statement made in I.D. No. 1/2000, wherein the 1st respondent has stated that he has not committed
any serious misconduct like misappropriation or corruption or embezzlement but suo motu action had been taken against the him in this case. The
learned counsel for the petitioner has stated that this contention of the 1st respondent-workman that action has been taken against him as per the
sweet will and pleasure of the petitioner-management without any material cannot be considered at all for he has violated the rules of the general
law by contracting a second marriage. Therefore, according to the learned counsel for the petitioner, on the basis of the Standing Orders and the
general law, action has been taken against the 1st respondent and there is no error committed by the disciplinary authority in passing the order of
removal against the 1st respondent. It is further stated by the learned counsel that on the basis of the admissions made by the 1st respondent and
the request for lesser punishment, the 2nd respondent-tribunal has condoned the unbecoming act of the 1st respondent and passed an order in his
favour. However, learned counsel for the petitioner reiterates that while accepting that the enquiry was fair and also that there was clear admission
on the part of the 1st respondent in respect of 2nd marriage as contracted by him, the impugned award has been passed mechanically on the
ground that there was no clear provision in the Standing Orders treating the bigamous marriage as misconduct. On that basis, it is his case that the
same should not be a ground for the 2nd respondent-tribunal to have the order of removal of the 1st respondent-workman set aside and that it is
excessive and contrary to the gravity of the misconduct. Therefore, learned counsel assails the impugned award of the 2nd respondent-tribunal on
the ground that it has not applied its mind and the provisions of the general law. Learned counsel further added that it would only put a premium on
the offences of this nature to be committed by persons. He has also referred to the fact that a person who commits murder should not rely upon the
provisions of the Standing Orders to say that it is not one of the misconduct as enumerated in the Standing Orders thereby, he could be made to
say that he should be reinstated in service even after committing murder. Learned counsel has also referred to the provisions of the Constitution of
India, Part IV-A, Article 51-A wherein the fundamental duties have been enumerated. It is further stated by the learned counsel that the Standing
Orders cannot be taken as an exhaustive one but it is only an illustrating provision wherein it is only used as a model conduct for the workers''
behaviour in general. Whereas that cannot be taken as a complete and exhaustive code for all the behaviour and conduct of the workers. It is also
stated by him that the 2nd respondent-tribunal ought not to have gone beyond its jurisdiction and decided the quantum of punishment imposed by
the petitioner-management. Moreover, the reasons for interfering with the detailed order passed by the petitioner-management has not been given
by the 2nd respondent-tribunal. Therefore, it is his contention that the impugned award challenged in these writ petitions should be set aside and
the order of removal passed by the petitioner-management should be upheld.
In reply to the submissions put forth by the learned counsel for the petitioner, learned counsel for the 1st respondent in W.P. No. 21813/2000
and for the petitioner in W.P. No. 6320/2001 submitted as follows:-
According to him, the 1st respondent-workman joined the Department of Atomic Energy as Helper-A in1971 which was then a part of Central
Government, though the Department of Atomic Energy was converted into a statutory corporation, called Nuclear Power Corporation (NPC) and
came into force from 17.9.1994. According to the learned counsel for the first respondent (petitioner in W.P. No. 6320/2001), though the
bigamous marriage is admitted, as long as it has not been enumerated as a misconduct in the Standing Orders of the petitioner-management, the
same cannot be accepted as a misconduct and so the order of removal passed by the petitioner-management on the basis of misconduct is invalid
and cannot be accepted. For that, learned counsel has referred to various decisions:-
(1) Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, .
(2) A.L. Kalra Vs. Project and Equipment Corporation of India Ltd.,
(3) S. Alamelu Vs. The Superintending Engineer, South Arcot Electricity System (S), Villupuram,
(4) J. Dhanraj Vs. Tamil Nadu Electricity Board and Others, .
(5) 11.4.1990 Order copy of T.A. No. 1322/1989 (W.P.
No. 14665/88) passed by the Tamil Nadu Administrative Tribunal
(6) 1998 93 FJR 147 T.N.E.B. v. T.N.E. Employees (Mad.)
Learned counsel for the 1st respondent-workman also submitted that this fact of misconduct not being enumerated in the Standing Orders has
been elaborately discussed by the 2nd respondent-tribunal while deciding the case in favour of the 1st respondent-workman. It is further pointed
out by him that only on the basis of the said decisions referred to above, the 2nd respondent-tribunal has passed the impugned award setting aside
the order of removal passed by the petitioner-management. Therefore, according to him, adequate reasons have been given by the 2nd
respondent-tribunal before setting aside the order of removal of the 1st respondent. It is further submitted that the petitioner-management ought not
to have initiated disciplinary proceedings at all, when the same has not been enumerated as a misconduct in the Standing Orders. It is his further
submission that on facts, the first wife was deserted as early as 1976 and there has been no complaint from her so as to initiate departmental
proceedings as against him, as has been done in this case. Therefore, in the absence of any complaint from any quarters, particularly from his first
wife, the action taken by the petitioner-management is highly unwarranted and no enquiry ought to have been conducted on that basis. According
to him, the first wife of the 1st respondent-workman has not taken steps in any of the forum available to her against him. Therefore, when that has
not been done by the affected party concerned, it was not necessary for the petitioner-management to initiate any such action against the 1st
respondent. Though the 1st respondent-workman has sought for the same relief of reinstatement with full backwages in W.P. No. 6320/2001, he
only wants to confine himself to the limited prayer of confirming the same award for the reason that during the pendency of the said writ petition,
the workman has left the services of the petitioner-management.
In reply to the submissions made by the learned counsel for the 1st respondent-workman learned counsel for the petitioner-management makes
the reply as follows:-
It is not correct on the part of the learned counsel for the 1st respondent-workman to state that the petitioner-management did not receive any
complaint from his first wife. He has referred to the original complaint given by the 1st wife of the 1st respondent-workman to the petitioner-
management. According to the counsel, only on the basis of the said complaint, action was initiated by the petitioner-management against the
workman. Therefore, it is not correct to state that the petitioner-management has suo motu taken action against the 1st respondent. Moreover,
according to the learned counsel for the petitioner-management, though contracting a second marriage has not been enumerated in the Standing
Orders, it cannot be construed that the same itself is not a misconduct and thereby no action need be taken for such an offence being committed by
a person or workman. He has also brought to the notice of this court the declaration made by the 1st respondent-workman at the time of his
entering into service, namely condition No. 9, which is extracted supra. Therefore, it is his case that the rationale behind the impugned award
passed by the 2nd respondent-tribunal cannot stand the legal scrutiny and therefore the same is liable to be set aside and no relief could be granted
to the 1st respondent-workman as given in the award.
Learned counsel for the 1st respondent-workman has submitted that the impugned award passed by the 2nd respondent-tribunal is well within
law and there is no infirmity or illegality in the same warranting this court to set aside the same.
I have given my careful consideration to the submissions made by both the learned counsel and the judgments referred to by them.
The only point that is to be decided in these writ petitions is whether any disciplinary action could be taken in respect of an act not enumerated
as an act of misconduct under the certified Standing Orders.
In Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, this question was considered by the Hon''ble
Supreme Court and in para 20 of the said judgment, the Hon''ble Supreme Court held as follows:-
It was next contended that while misconduct is enumerated in S.O.22, the punishment is prescribed in S.O.23, and the expression
''misconduct'' in S.O.23 would comprehend any misconduct irrespective of the fact whether it is enumerated in S.O.22 or not. The preamble of
S.O.23 reads as under:
23(a) Any workman who is adjudged by the manager on examination of the workman, if present, and of the facts to be guilty of misconduct is
liable to be ....
The submission is that the expression ''misconduct'' under S.O.23 is not qualified as the one set out in S.O.22 and therefore, any other act of
omission or commission which would per se be misconduct would be punishable under S.O.23 irrespective of the fact whether it finds its
enumeration in S.O.22. The Act makes it obligatory to frame standing orders and get them certified. S. 3(2) requires the employers in an industrial
establishment while preparing draft standing orders to make provision in such draft for every matter set out in the Schedule which maybe applicable
to the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable, in conformity with such
model. Item 9 of the Schedule provides ''suspension or dismissal for misconduct, and acts or omissions which constitute misconduct''. It is
therefore, obligatory upon the employer to draw up with precision those acts of omission and commission which in his industrial establishment
would constitute misconduct. Penalty is imposed for misconduct. The workmen must therefore, know in advance which act or omission would
constitute misconduct as to be visited with penalty. The statutory obligation is to prescribe with precision in the standing order all those acts of
omission or commission which would constitute misconduct. In the face of the statutory provision it would be difficult to entertain the submission
that some other act or omission which may be misconduct though not provided for in the standing order would be punishable under standing order
Upon a harmonious construction, the expression ''misconduct'' in S.O.23 must refer to those acts of omission or commission which constitute
misconduct as enumerated in standing order 22 and none else. However, in this connection, Mr.Shanti Bhushan drew our to Mahendra Singh
Dhantwal Vs. Hindustan Motors Ltd. and Others, . In that case in a second round of litigation between the parties the Industrial Tribunal set aside
the order of dismissal of the workmen and ordered reinstatement with full back wages. In a writ petition filed by the Company under Art. 226 of
the Constitution, a learned Single Judge of the High Court declined to interfere with the award holding that ''the reason might have been the old
reason of dismissal'' and that the ""circumstances relied on by the Tribunal cannot be characterised as unreasonable."" The Company carried the
matter to the Division Bench of the High Court which accepted the appeal observing that unless contravention of S. 33 of the Industrial Disputes
Act is established, the Industrial Tribunal would have no jurisdiction to entertain an application under S. 33A. In terms it was held that unless it is
established that there has been discharge for misconduct, the Industrial Tribunal had no jurisdiction to set aside the order of termination in an
application under S. 33A. In the appeal by certificate granted by the High Court, workman contended that S. 33 may be contravened in varieties
of ways and the only question that need to be examined is whether there was a contravention by the employer in that it did not make any
application to the Tribunal for the approval of the order of termination of service of the workman. It is in this context that while allowing the appeal
of the workman this Court observed as under:
Standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which
a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it
may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate
action. Ordinarily, the standing orders may limit the concept but not invariably so.
Relying on these observations, Mr.Shanti Bhushan urged that this Court has in terms held that there can be some other misconduct not enumerated
in the standing order and for which the employer may take appropriate action. This observation cannot be viewed divorced from the facts of the
case. What stared in the face of the court in that case was that the employer had raised a technical objection ignoring the past history of litigation
between the parties that application under S. 33A was not maintainable. It is in this context that this Court observed that the previous action might
have been the outcome of some misconduct not enumerated in the standing order. But the extracted observation cannot be elevated to a
proposition of law that some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post
facto would expose the workman to a penalty. The law will have to move two centuries backward to accept such a construction. But it is not
necessary to go so far because in Salem Erode Electricity Distribution Company Ltd. Vs. Salem Erode Electricity Distribution Co. Ltd. Employees
Union, , this Court in terms held that the object underlying the Act was to introduce uniformity of terms and conditions of employment in respect of
workmen belonging to the same category and discharging the same or similar work under an industrial establishment, and that these terms and
conditions of industrial employment should be well-established and should be known to the employees before they accept the employment. If such
is the object, no vague undefined notion about any act may be innocuous which from the employer''s point of view may be misconduct but not
provided for in the standing order for which a penalty can be imposed, cannot be incorporated in the standing orders. From certainty of conditions
of employment, we would have to return to the days of hire and fire which reverse movement is hardly justified. In this connection, we may also
refer to Western India Match Company Ltd. Vs. Workmen, , in which this Court held that any condition of service if inconsistent with certified
standing orders, the same would not prevail and the certified standing orders would have precedence over all such agreements. There is really one
interesting observation in this which deserves noticing. Says the Court:
In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market
would settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair
terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But
the experience of the working of this law over a long period has belied their faith.
Lastly we may refer to Workmen of Lakheri Cement Works Ltd. v. Associated Cement Companies Ltd. 1970 20 I.F. & L.R. 243. This Court
repelled the contention that the Act must prescribe the minimum which has to be prescribed in an industrial establishment, but it does not exclude
the extension otherwise. Relying upon the earlier decision of this Court in Rohtak Hissar District Electricity Supply Co. Ltd. Vs. State of Utter
Pradesh and Others, , the 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 a 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 none
the less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of
imposing a penalty. Accordingly, the contention of Mr.Shanti Bhushan that some other act of misconduct which would per se be an act of
misconduct though not enumerated in S.O.22 can be punished under S.O.23 must be rejected.
In A.L. Kalra Vs. Project and Equipment Corporation of India Ltd., , the Hon''ble Supreme Court has held that acts of misconduct must be
precisely and specifically stated in the rules or standing orders and it cannot be left to be interpreted ex post facto by the management.
This Court in S. Alamelu Vs. The Superintending Engineer, South Arcot Electricity System (S), Villupuram, , held in para 6, as follows:-
One of us (Nainar Sundaram, J.) in S.V. Angappan and Ors. v. The Tamilnadu Electricity Board, Rep., by its Secretary, Madras 2 W.P. No.
5105 of 1980, order dated 6th January, 1987),adverted to the ratio of the Supreme Court in Glaxo Lab (I)Ltd. v. Labour Court, Meerut and Ors.
(supra) and opined that unless the transgression of any of the Regulations is also enumerated as misconduct in the Standing Orders, it will not
attract disciplinary action in respect of such transgression. It is true Regulation 25(2) as such sets forth an embargo on a woman employee
contracting a marriage with any person, who has a wife living, without first obtaining the permission of the Board. It is admitted that the Regulations
do not by themselves say that a violation of Regulation 25(2) would amount to misconduct, attracting disciplinary action. Even if such a provision
has been made, the Standing Orders under the Act having got formulated and certified and they having not provided for such a misconduct, the
Regulations would not prevail and could not be invoked to take disciplinary action. That is the result of sanctity annexed to the Act and the Rules,
and the Standing Orders under them, and their overriding effect on other service Rules and Regulations. The learned single Judge, with due respect
to him, in our view, has not appreciated the implications of the Certified Standing Orders under the Act and their overriding effect from a proper
perspective. The learned single Judge took note of the observations in Rasiklal Vaghajibhai Patel Vs. Ahmedabad Municipal Corporation and
Another, as saying that there could be an action either under the Service Regulations or Standing Orders. With due respect to the learned single
Judge, we must point out that the said pronouncement has not at all dealt with the question of the overriding effect of the Certified Standing Orders
under the Act over a Regulation of the present nature. The Supreme Court in that case, was discountenancing the view of the High Court that even
if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations, yet the employer can
attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same.
Yet another Division Bench of this court in J. Dhanaraj and T.N.E.B. & Others held in para 9 and 10 as follows:
Para:9. No doubt, the proposition laid down in that case appears to support the respondents herein. But it is explained and distinguished by the
Supreme Court in Glaxo Lab (I) Ltd''s case (cited supra). The later Judgment has taken note of the earlier Judgment. Apart from that in so far as
this Court is concerned, there is already a Division Bench on the said point and the Division Bench has considered the Regulations and the
Standing Orders which are under our consideration in the present case. The ruling of the Division Bench will certainly govern the present case also.
As we are in agreement with the view taken by the Division Bench, we are not in a position to accept the contention raised by learned counsel for
the respondents.
Para 10: Learned counsel for the respondents invites our attention to the decision in Murlidhar Raghoji Savant Vs. General Manager, Mather and
Platt (I) Ltd. and Others, rendered by the Bombay High Court. After referring to the two Judgments of the Supreme Court, the Bombay High
Court in that decision held that it would not go into the controversy and by steering clear of the controversy, the Court assumed for the purpose of
that case that the law laid down by the Supreme Court was that the Standing Orders must specifically enumerated any act before it can be termed
as a misconduct. Thus, the Bombay High Court proceeded on the footing that the law laid down by the later Judgment of the Supreme Court
would hold the field.
In Tamil Nadu Electricity Board v. Central Organisation of Tamil Nadu Electricity Employees and Anr. 1988 FJR 147 a Division Bench of this
Court held as follows:
The apex court, in Glaxo Laboratories (I) Ltd. v. Labour Court (1984) 64 FJR 16, has held that a non-enumerated misconduct cannot form the
subject-matter of a disciplinary action. Following the said view, in U.P. State Electricity Board, v. H. S. Jain , it has been held that without
amendment to the certified standing orders and by including the various misconducts enumerated in the conduct regulations as applicable to
workmen covered by the standing orders would really by passing the provisions for amendment to the certified standing orders prescribed u/s 10
of the Industrial Employment (Standing Orders) Act. In that view of the matter, we have no hesitation to conclude that the circular now issued is
against the provisions of the Act. Therefore, we are in conformity with the view of the learned single judge that a service regulation cannot be
replaced by a circular or a memorandum, introducing series of misconducts not enumerated in the standing orders. So as to ensure safeguard to the
workmen they should know what are the service conditions and what constitutes misconduct, at the time of entry into service. In the standing
orders, as many as 36 misconducts are enumerated. To read something else to that, it can be done only by way of restoring to an amendment to
the certified standing orders, u/s 10 of the Act, which gives ample opportunity for the employees to have their say and to take the matter finality in
the form of judicial review. What is not contemplated as a service condition when entered into service cannot be upset or re-introduced by way of
memorandum, which has no statutory value, unless it assumes a statutory significance by way of an amendment in the manner provided by law.
Therefore, the decisions, which have no binding impact by virtue of the order of the apex court cannot be a ground to upset the findings of the
learned single judge. Since the order of the learned single judge based on two decisions of the Division Bench of this court in S. Alamelu Vs. The
Superintending Engineer, South Arcot Electricity System (S), Villupuram, , and Dhanaraj v. T.N.E.B. (1995) 64 FJR 16, which decisions are
based on the view of the Supreme Court in Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, , we have no
other option than to confirm the order of the learned single judge, which consequently leads to the dismissal of the appeal.
Accordingly, the writ appeal is dismissed with cost of Rs. 2,000/- (Rupees two thousand only) payable to respondent No. 1.
Therefore, I am bound by the judgments of the apex court and the Division Bench of this Court which decided the issue already that no
disciplinary action could be taken against an employee for misconduct if such acts are not enumerated in the misconduct under the standing orders.
In the present case it was admitted by the petitioner/respondent that bigamy is not enumerated as a misconduct in the standing orders holding
the field. It is admitted by him that only for the misconduct of committing bigamy, the respondent workmen was proceeded with and was removed
from service ultimately. The Labour Court has correctly applied the principles and the law laid down by the Apex Court and this Court and rightly
held that the 1st respondent-workman is entitled to reinstatement with conditions.
Therefore, I am unable to accept the contentions of the learned counsel for the petitioner-management and the writ petition filed by the
management is liable to dismissed for devoid of merits. Accordingly, W.P. No. 21813/2000 filed by the petitioner-management is dismissed and
W.P. No. 6320/2001 filed by the 1st respondent-workman is also dismissed as the learned counsel for the petitioner workman prayed for only the
confirmation of award as given by the labour Court. However, there will be no order as to costs.