JUDGMENT S.P. Srivastava, J.
1. Feeling aggrieved by the award of the Labour Court No. 1, dated September 26, 1979, holding that the petitioner-employer had acted illegally in discharging the driver, Respondent No. 3, with effect from May 22, 1973, and directing his reinstatement with full back-wages, the petitioner-employer has approached this Court seeking redress praying for the quashing of the impugned award.
2. Heard Learned Counsel and perused the record. It appears that Respondent No. 3, who was employed as a driver for driving the staff bus of the petitioner, had dashed the bus against a Government roadways bus resulting in damage to the bus whereafter he was charge-sheeted and asked to explain as to why disciplinary action may not be taken for rash and negligent driving, for not lodging any complaint of the accident with the police; for exceeding his authority by executing an agreement with a Government roadways driver and for the incurring loss and damage to the factory. In the domestic enquiry, it was found that Respondent No. 3 acting in haste and without caring for the safety of the bus and passengers travelling therein, had tried to overtake the Government roadways bus and while so doing the factory bus had dashed against the Government roadways bus and damage was caused to the factory bus to the tune of Rs. 800 to 900. It was also found that Respondent No. 3 had intentionally avoided filing any complaint with the police and further had exceeded his authority by entering into an agreement with the driver of the Government roadways bus. In the domestic enquiry, the charges levelled against Respondent No. 3 were found to be proved beyond any shadow of doubt. The management of the petitioner thereafter appears to have decided to discharge Respondent No. 3 from the service of the factory after giving one-month wages in lieu of the notice period. This punishment was awarded after taking into consideration the previous service record of Respondent No. 3 which showed that he had been warned for dishonesty ; for late running of the bus ; for carrying outsiders in the factory bus and charging fare from them and leaving duty without permission ; for disobedience of the order of superiors, etc.
3. On an industrial dispute having been raised the State Government made a reference to the effect as to whether the discharge of Respondent No. 3 with effect from May 22, 1973, was valid and if not in that event to what relief and damages he was entitled.
4. The Labour Court, in its impugned decision, came to the conclusion that the acts attributed to Respondent No. 3 which had been made the basis for his discharge from service were not covered under any of the clauses of para 22 of the relevant standing order which defined the acts or omissions constituting "misconduct". It was, therefore, held that it could not be said that the workman concerned had committed any "misconduct" and even if the charges mentioned in the charge-sheet dated January 1, 1973, were assumed to be correct, it could not be held that Respondent No. 3 had committed a misconduct and consequently the Labour Court was of the opinion that the enquiry proceedings as a result of which Respondent No. 3 had been dismissed were illegal and his service could not be terminated on the basis of these proceedings. It was in this view of this matter that without going into any other question the Labour Court directed the reinstatement of Respondent No. 3 with effect from May 22, 1973, with full back-wages.
5. Learned counsel for the petitioner has urged that para 22 of the relevant Standing Orders enumerated acts or omissions constituting misconduct and that Clause 13 of the aforesaid paragraph stipulated damage to work-in-process or to other property of factory to be a misconduct. The contention is that the damage to the staff bus of the petitioner did fall within the ambit of Clause 13 of paragraph 22 of the Standing Orders. It was further contended that paragraph 22 of the Standing Orders which contained various clauses indicating various types of misconduct was not exhaustive and the various types of acts/ omissions, referred to in the various clauses of paragraph 22 of the Standing Orders, were only enumerative and not exhaustive. It was urged that, in the facts and circumstances of the case, the acts attributed to the delinquent employee, Respondent No. 3, clearly amounted to a "misconduct" for which he could be punished. The assertion is that the impugned award is manifestly illegal as it proceeds on the erroneous assumption that the acts/omissions attributed to the delinquent employee-Respondent No. 3 did not amount to a "misconduct" so as to authorise the petitioner-employer to take any disciplinary action against the delinquent employee and award a punishment to him.
6. It may be noticed that the expression "misconduct" has not been defined either in the Industrial Disputes Act, 1947, or the U. P. Industrial Disputes Act, 1947. Ordinarily, misconduct refers to "improper behaviour" intentional wrongdoing or deliberate violation of a rule of standard of behaviours. In so far as the relationship in industrial employment is concerned, a workman has certain express or implied obligations towards his employer. Obviously, any conduct on the part of an employee inconsistent with the faithful discharge of his duties towards his employer can fall within the ambit of "misconduct" unless it be of a trifling nature. A "misconduct" on the part of an employee obviously has to be in respect of some positive act or of conduct which would be quite ' incompatible with any express or implied term of relationship of the employee with the employer. The employers may frame their own Standing Orders suited to the peculiar exigencies of their industries and establishments and there may be a case where the Standing Orders may limit the concept of misconduct.
7. However, it cannot be lost sight of that the Standing Orders of an establishment may only describe certain cases of misconduct which cannot be deemed to be exhaustive of all the species of misconduct which a workman may commit. There may be a case where an act may not come within the specific terms of misconduct described in the Standing Order although it may still be misconduct in the special circumstances and the facts of the case which it may not be possible to condone and for which the employer may take appropriate action. There may also be various types of misconduct other than those included in the Standing Orders which may expose a delinquent employee to penal consequence. It is not possible to lay down any general rule in this regard but the question as to whether a particular act of misconduct has been committed or not, even though it may not have been described in so many words in the Standing Orders, will be a matter for the Labour Court/Tribunal to consider. Likewise, whether a particular misconduct will entitle the employer to punish the employee with dismissal or discharge will also be a matter in an appropriate case for decision by the Tribunal/ Labour Court, as it is for the Tribunal/Labour Court to consider whether the punishment inflicted was commensurate with the gravity of the misconduct.
8. It may further be not lost sight of that a workman owes a duty to his employer to exercise reasonable care in the performance of his duties. A workman who deliberately neglects to carry out his work or perform his duty when required to do with reasonable care has to be held guilty of misconduct of negligence. Further, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to person or property.
9. Having considered the facts and circumstances of the case and the stipulations contained in para 22 of the relevant Standing Orders, it seems to me that the acts/omissions, referred to in the various clauses of para 22 of the Standing Orders, cannot be deemed to be exhaustive. On the other hand, they are only enumerative of the misconduct which may authorise the employer to take disciplinary action and award suitable punishment to the delinquent employee. Moreover, the damage in question to the staff bus could not be taken to be as falling outside the ambit of Clause 13 of para 22 of the Standing Orders.
10. In view of my conclusions indicated hereinabove, I find it impossible to approve of the finding returned by Respondent No. 1 in the impugned award to the effect that the acts attributed to Respondent No. 3 in the charge-sheet submitted against him could not amount to a "misconduct" so as to authorise the employer to take disciplinary action and award a suitable punishment in case the charges stood proved in accordance with law.
11. In the present case, since Respondent No. 1 has passed the impugned award only on the aforesaid preliminary finding about there being total absence of "misconduct" so as to justify any disciplinary action and has not gone into any other question, I think it would be in the interest of justice to remand the case to Respondent No. 1 for being decided afresh in accordance with law in the light of the observations made hereinabove.
12. In the result this writ petition succeeds in part. The impugned award dated September 26, 1979, a true copy of which has been filed as Annexure-1 to the writ petition, is quashed with the direction to Respondent No. 1 to restore the adjudication case in question to its original number and decide the same afresh in accordance with law and in the light of observations made hereinabove.
However, the parties are directed to bear their own costs.