Summary
The petitioner applied for the post of Head Clerk with Ahmedabad Municipal Corporation in a prescribed form which contained a column requiring the applicant to state whether he had been removed from service and, if so, reasons for such removal. The petitioner, who had earlier been removed from service of the Sales Tax Department on the ground of proved misconduct, made a false suggestion that he had voluntarily left service because of transfer.
Ultimately, when these facts came to light, he was charge-sheeted and removed from service. The Labour Court rejected his petition against removal from service on the ground that the misconduct alleged against him is proved.Thereupon, he filed a writ petition in the High Court.The High Court while dismissing his petition held that even if the allegation of misconduct does not constitute 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.Dismissing the petition by the petitioner,^HELD: (1) It is a well-settled canon of penal jurisprudence that removal or dismissal from service on account of the misconduct constitutes penalty in law and therefore the workman sought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct. Therefore, under, the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. But, if after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. Therefore, it cannot be left to the vagaries of management to say ex post facto 557that some acts of omission or commission nowhere found to be enumerated in A 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.[559C-E; B-C; 561C and D]Glaxo Laboratories v. The Presiding Officer Labour Court Meerut & Ors. [1984] 1 SCR 230 followed.Salem Erode Electricity Distribution Co. Ltd v.Salem Erode Electricity Distribution Co. Ltd. Employees Union [1966] 2 SCR 498, Western India Match Company Lid. v. Workman [1974] SCR 434, Workmen of Lakheri Cement Works Ltd. v. Associated Cement Companies Ltd. 1970 20. Indian Factories & Labour Reports 243 & Rohtak Hissar District Electricity Supply Co. Ltd. v. State of Utter Pradesh & Ors. [1966] 2 SCR 863 referred to.(2) It is thus well-settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct. [561E](3) In the instant case, the petitioner is shown to be guilty of suppression of a material fact which would weigh with any employer in giving him employment and therefore, the case of the petitioner does not merit consideration under Art. 136 of the Constitution and his petition for special leave to appeal must accordingly fail. The High Court was right in holding that the suppresio veri and suggestion falsi would constitute misconduct. But, the finding of the High Court that even if the misconduct does not fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would none-the-less be a misconduct punishable as such is not the correct view of law and it has to be rejected.[557H; 561H; 562 A, B]See the full content of this document
Extract
Rasiklal Vaghajibhai Patel VS. Ahmedabad Municipal Corporation And Another
PETITIONER: RASIKLAL VAGHAJIBHAI PATEL Vs.RESPONDENT: AHMEDABAD MUNICIPAL CORPORATION AND ANOTHERDATE OF JUDGMENT14/01/1985BENCH: DESAI, D.A.BENCH: DESAI, D.A.MISRA RANGNATHCITATION: 1985 AIR 504 1985 SCR (2) 556 1985 SCC (2) 35 1985 SCALE (1)101ACT: Labour Law-Misconduct-Whether suppression of material fact regarding prior dismissal the time of obtaining fresh employment Constitutes "misconduct "- Whether Standing Orders or Service Regulation, should enumerate an act or omission as "misconduct" -Effect of non-prescri...
See the full content of this document