Special Leave Petition Civil No 5523 of 1984
From the Judgment and Order dated 28th November 1983 of the High Court of Gujarat in Special Civil Application No 4649 OF 1981
Vimal Dave for the Petitioner
The Judgment of the Court was delivered by DESAI J
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 article 136 of the Constitution and his petition for special leave to appeal against the decision of a Division Bench Of 558 the Gujarat High Court in Special Application No 4649 of 1981 dated November 281983 must accordingly fail but this short epistle became a compelling necessity in view of the statement of law appearing in the judgment of the High Court which if permitted to go uncorrected some innocent person may suffer in future
That is the only justification for this short order
The petitioner on his application was recruited in the Sales Tax Department on September 30 1950 and at the relevant time he was working as Sales Tax Inspector
By an order dated January 31 1964 of the Commissioner of Sales Tax Gujarat State the petitioner who was at the relevant time working as Sales Tax Inspector was charged with misconduct of gross negligence and acted with gross impropriety in demanding illegal gratification and as these charges were held proved the Commissioner of Sales Tax imposed a penalty of removal from service
This is not in dispute and therefore it can be safely stated that the petitioner was removed from the service of the Sales Tax Department on account of the proved misconduct
After being removed from the Sales Tax Department the petitioner joined service in Bhakta Vallabh Dhola College Ahmedabad  college  for short on May 15 1964
While continuing his service with the college the petitioner applied on January 13 1968 for the post of Head Clerk with Ahmedabad Municipal Corporation
The application had to be made in the prescribed form Column No 14 of which required the applicant to state whether the applicant had been removed from service and if so reasons for removal and if the applicant had voluntarily left previous service reasons for leaving the service should be stated
While answering this column the petitioner stated that he had served in the Sales Tax Department from September 30 1950 to January 311964 and that he has resigned from service due to transfer
It thus appeared that the petitioner was guilty of suppressio veri and suggestio false inasmuch as he suppressed the material fact that he was removed from service on the ground of proved misconduct and that he 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
A petition to the Labour Court was rejected on the ground that the misconduct alleged against the petitioner is proved
His writ petition to the High Court proved unsuccessful
Hence he filed this petition for special leave
559 The High Court while dismissing the petition held that even if A 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
This proposition appears to us to be startling because even though either under the Certified Standing Orders or service regulations it is necessary for the employer to prescribe what would be the misconduct so that the workmanemployee knows the pitfall he should guard against
If after undergoing the elaborate exercise of enumerating misconduct it is left to the unbridled discretion of the employer to dub any conduct as misconduct the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer
It is a well settled canon of penal jurisprudence removal or dismissal from service on account of the misconduct constitutes penalty in law that the workmen sought to be charged for misconduct must have adequate advance notice of what section or what conduct would constitute misconduct
The legal proposition as stated by the High Court would have necessitated in depth examination but for a recent decision of this Court in Glaxo Laboratories vs The Presiding Officer Labour Court Meerut  Ors1 in which this Court specifically repelled an identical contention advanced by Mr Shanti Bhushan learned counsel who appeared for the employer in that case observing as under 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 started 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 Sec
33A was not maintain able
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 1 19841 SCR 230
560 penalty
The law will have to move two centuries back ward to accept such a construction
But it is not necessary to go so far because in Salem Erode Electricity Distribution Co Ltd vs Salem Erode Electricity Distribution Co Ltd Employees Union1 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 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
Workmen2 in which this Court held that any condition of service if inconsistent with certified standing orders the same could 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 economy 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 belief their faith
 Lastly we may refer to Workmen of Lakheri Cement Works 1  2  561 Ltd Associated Cement Companies Ltd1 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 other wise
Relying upon the earlier decision of this Court in Rohtak Hissar District Electricity Supply Co Ltd vs State of Uttar Pradesh  Ors2 the Court held that everything which is required 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 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 Bhusan that some other act of misconduct which would per se be an act of misconduct though not enumerated in SO 22 can be punished under SO 23 must be rejected
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
The High Court fell into error when is observed that The conduct of the petitioner in suppressing the material facts and misrepresenting his past on the material aspect cannot be said to be a good conduct
On the contrary it is unbecoming of him that he should have deliberately suppressed the material fact and tried to obtain employment by deceiving the Municipal Corporation
It is clearly a misconduct  After thus holding that the suppressio very and suggestio false would constitute misconduct the High Court held even if it 1 1970 20 Indian Factories  Labour Reports 243
2  562 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
We are unable to accept this view of law and it has to be rejected
Having clearly restated the legal position we reject this special leave petition
MLA Appeal dismissed


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 workmanemployee 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 557 that 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 vs The Presiding Officer Labour Court Meerut  Ors  followed
Salem Erode Electricity Distribution Co Ltd vs Salem Erode Electricity Distribution Co Ltd Employees Union   Western India Match Company Lid
vs Workman   Workmen of Lakheri Cement Works Ltd vs Associated Cement Companies Ltd 1970 20
Indian Factories  Labour Reports 243  Rohtak Hissar District Electricity Supply Co Ltd vs State of Utter Pradesh  Ors  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 article 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