Case: Agnani (W. M.) Vs. Badri Das and Others

to glance at the twenty categories of misconduct specified by Para. 10 of the standing orders to realize that a private quarrel between an employee of the respondents and another citizen cannot fall within any of those categories. It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with commonsense.In the present case, what is the conduct proved against the appellant ? The appellant does not dispute the fact that he spoke sharp words to Om Parkash; but the quarrel was purely a private quarrel between Chakerpani and Om Parkash, and the appellant intervened and wanted Om Parkash to return the pawned articles to Chakerpani on his paying the amount borrowed by him. This incident has, no doubt, taken place in the colony built by the respondents for their employees, but outside the premises of the paper and it has taken place between one of the employees and a shop-keeper. When we bear in mind the background of the dispute, the nature of the quarrel, the time and place where it took place and its essential features, it is difficult to accept the High Courts conclusion that the tribunal committed an error apparent on the face of the record when it held that the acts proved against the appellant did not constitute misconduct. In this connexion, it is necessary to emphasize that the tribunal was entitled to consider the legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the tribunal when it was dealing with the industrial dispute referred to it.13. It is true that a large number of employees complained to the respondents on 18 November 1959, and that in fact was the justification for the resolution passed by the respondents; but it is remarkable that these persons who complained were not present at the scene when the incident took place and their complaint is obviously based on information received by them later. One has merely to read the language of this complaint to appreciate the comment made by the appellant that this complaint is inspired. It would be idle to contend that the incident which took place between appellant and the shop-keeper could have hurt the feelings of the ladies living in the colony and could have constituted "a challenge to the self-respect of those who lived in the colony." The extravagant language used in this complaint tends to defeat rather than help the purpose which it was intended to serve. It is also significant that though the incident took place on 16 November, 1959, and a complaint about it was received on 18 November, 1959, no action was taken until 2 January, 1960; and that prima facie lends some support to the appellants case that what really annoyed the respondents was the fact that the appellant had started another union and got it registered in December 1959. As we have already observed, tribunal has not considered the appellants case about his victimization because it allowed his prayer for reinstatement on grounds of law raised by him, but since Mr. Setalvad has referred to the complaint, we thought it necessary to point out that the complaint on which the respondents rely and the manner in which they passed the resolution prima facie are indicative of their indignation which cannot be said to be justified merely by the incident which took place on 16 November, 1959. We have carefully considered the points raised by Mr. Setalvad before us, but we do not think it is possible to hold that on the facts held proved by the tribunal in this case it was open to the High Court to exercise its jurisdiction under Art. 226. If the respondents had come to this Court in appeal under Art. 136 against the award made by the tribunal, it might perhaps have been open to them to challenge some of the findings of the tribunal, because, theoretically, the scope of our jurisdiction under Art. 136 in dealing with awards is wider than the scope of the High Courts in dealing with the awards under Art. 226 of the Constitution. It appears to us that in allowing the writ petition filed before it by the respondents, the High Court has, in substance, purported to act as an appellate Court and that is a very serious infirmity in the order.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In dealing with this appeal, it is necessary at the outset to emphasize the limits of the jurisdiction of the High Court in entertaining a plea for a writ of certiorari under Art. 226. This question has been theof several decisions of this Court, and the law in relation to it is no longer in doubt. In order to justify the issue of a writ of certiorari, it must be shown that the impugned order suffers from an error apparent on the face of the record. It is clear that the error must be an error of law, not an error of fact, because an error of fact, though serious, and though it may be apparent on the face of the record, cannot sustain a claim for the writ of certiorari : It is only errors of law that justify the issue of the end writ, provided, of course, they are of such a character as would reasonably be treated as errors apparent on the face of the record.The tribunal took the view that this resolution clearly showed that the enquiry had to be held about the incident which took place on 16 November, 1959 and it thought that the reference to his previous conduct was in incidental and may have been necessary for determining the question of sentence, but it was not intended to be theof the enquiry. The High Court has taken a different view. Apart from the correctness of one view or another, it seems to us plain that in a matter of this is kind, if the tribunal put one interpretation upon the resolution and the High Court thought it better to put another, that cannot be said to introduce an error apparent on the face of the record in the order of the tribunal. If it can be said that the view taken by the tribunal is not even reasonably possible, perhaps an argument may be urged that the error is apparent on the face of the record; but, in our opinion, it would not be possible to accept Mr. Setalvads argument that the construction placed by the tribunal is an impossible construction. On the other hand, while conceding that the view taken by the High Court may be reasonably possible, we are inclined to think that the construction put upon the resolution by the tribunal is also reasonably possible; if we had to deal with the matter ourselves, we would have preferred the view of the tribunal to the view of the High Court. The enquiry contemplated by Para. 2 is an enquiry into the conduct specifically mentioned in Para. 1, and so the tribunal was justified in holding that charges 1 to 8 which had nothing to do with the incident of 16 November, 1959, were not entrusted to the enquiry committee. Apart from this aspect of the matter, we are satisfied that the High Court should not have entertained this argument under Art. 226 of the Constitution.Mr.Setalvad then attempted to argue that charges 1 to 8 had been subsequently adopted by the respondents and in that sense, It may be assumed that the respondents wanted to have the said charges tried.We do not think it necessary to examine this argument, because on the record it does not appear that the respondents had formally affirmed these charges before they were sent to the enquiry committee. In any event, is no doubt that the tribunal was entitled to consider this point and if it came to the conclusion that the enquiry contemplated by the resolution of 2 January, 1960 was confined only to the incident of 16 November, 1959, it would not be open to the respondents to contend under Art. 226 that view is erroneous and that the error should be corrected by the issue of a writ of certiorari.11.Then as to the second point about the misconduct alleged to have been committed by the appellant on 16 November, 1959, Mr. Setalvad has very strenuously contended before us that it was for the domestic enquiry to consider this matter and since an enquiry has been properly held and the conclusion of the enquiry committee has been accepted by the respondents, the tribunal had no authority to consider the propriety or the correctness of the findings, or even the propriety of the ultimate action taken by the respondents against the appellant.It is true that if a domestic enquiry held and the employer terminates the services of his employee, the industrial tribunal dealing with industrial disputes arising out of such dismissals is not authorized to sit in appeal over the findings of the enquiry committee, or to examine the propriety of the ultimate order of dismissal passed by the employer. This position is, of course, subject to the qualification that if it appears to the tribunal that the ultimate order is so disproportionately severe in relation to the misconduct proved that it may lead to an inference of victimization, the tribunal would be justified in interfering with that order. In that present case, the tribunal did not think it necessary to decide the point of victimization, because it held that the other points of law raised by the appellant before it werein dealing with the merits of the conclusion reached by the tribunal and the High Court on this part of the case, it may be relevant to refer to standing order 10, Cl. (9). At the time when the enquiry was held, no standing orders had been framed, but apparently they have been framed subsequently, and as we have already indicated, the respondents relied upon standing order 10(9) before the tribunal. Standing order 10, inter alia, provides for the classification and description of misconduct. Clause (9) of the standing order says that it would be misconduct which would entail dismissal if alone or in combination with orders, anywhere within the trusts estate, an employee causes or threatens to cause mental and/or physical pain or injury to other employees. It is plain that the conduct proved against the appellant does not fall under this clause. The quarrel was between the appellant who espoused the cause of Chakerpani, another employee of the respondents, and the shopkeeper Om Parkash. Om Parkash is not an employee of the respondents, though he had been allowed to run the shop for the benefit of the respondents employees. The tribunal was, therefore, clearly right in rejecting the respondents case that the misconduct proved against the appellant was of a character which would fall under standing order 10(9).12. The standing orders, which have been subsequently adopted by the respondents, however help us in determining what the respondents treat as misconduct. One has merely to glance at the twenty categories of misconduct specified by Para. 10 of the standing orders to realize that a private quarrel between an employee of the respondents and another citizen cannot fall within any of those categories. It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance withappellant does not dispute the fact that he spoke sharp words to Om Parkash; but the quarrel was purely a private quarrel between Chakerpani and Om Parkash, and the appellant intervened and wanted Om Parkash to return the pawned articles to Chakerpani on his paying the amount borrowed by him. This incident has, no doubt, taken place in the colony built by the respondents for their employees, but outside the premises of the paper and it has taken place between one of the employees and aWhen we bear in mind the background of the dispute, the nature of the quarrel, the time and place where it took place and its essential features, it is difficult to accept the High Courts conclusion that the tribunal committed an error apparent on the face of the record when it held that the acts proved against the appellant did not constitute misconduct. In this connexion, it is necessary to emphasize that the tribunal was entitled to consider the legality of the action taken by the respondents, because it held that the respondents had misdirected themselves in law in coming to the conclusion that the incident in question amounted to misconduct at all. This aspect of the matter cannot be said to be outside the jurisdiction of the tribunal when it was dealing with the industrial dispute referred to it.13. It is true that a large number of employees complained to the respondents on 18 November 1959, and that in fact was the justification for the resolution passed by the respondents; but it is remarkable that these persons who complained were not present at the scene when the incident took place and their complaint is obviously based on information received by them later. One has merely to read the language of this complaint to appreciate the comment made by the appellant that this complaint is inspired. It would be idle to contend that the incident which took place between appellant and thecould have hurt the feelings of the ladies living in the colony and could have constituted "a challenge to theof those who lived in the colony." The extravagant language used in this complaint tends to defeat rather than help the purpose which it was intended to serve. It is also significant that though the incident took place on 16 November, 1959, and a complaint about it was received on 18 November, 1959, no action was taken until 2 January, 1960; and that prima facie lends some support to the appellants case that what really annoyed the respondents was the fact that the appellant had started another union and got it registered in December 1959. As we have already observed, tribunal has not considered the appellants case about his victimization because it allowed his prayer for reinstatement on grounds of law raised by him, but since Mr. Setalvad has referred to the complaint, we thought it necessary to point out that the complaint on which the respondents rely and the manner in which they passed the resolution prima facie are indicative of their indignation which cannot be said to be justified merely by the incident which took place on 16 November, 1959. We have carefully considered the points raised by Mr. Setalvad before us, but we do not think it is possible to hold that on the facts held proved by the tribunal in this case it was open to the High Court to exercise its jurisdiction under Art. 226. If the respondents had come to this Court in appeal under Art. 136 against the award made by the tribunal, it might perhaps have been open to them to challenge some of the findings of the tribunal, because, theoretically, the scope of our jurisdiction under Art. 136 in dealing with awards is wider than the scope of the High Courts in dealing with the awards under Art. 226 of the Constitution. It appears to us that in allowing the writ petition filed before it by the respondents, the High Court has, in substance, purported to act as an appellate Court and that is a very serious infirmity in the