1. The petitioner is an Assistant Operator, belonging to the regular work establishment category in the Tamil Nadu Electricity Board. He was served with a charge memo on 14 May 1982 by the Superintending Engineer (Operations), Ennore Thermal Power Station, who is the appointing authority that he contracted second marriage, when the first wife was alive and that he claimed M.R.I. bills in the name of second wife. He was also called upon to submit his explanation as to why disciplinary action should not be taken against him. He gave his explanation on 9 August 1982 setting out the circumstances under which he happened to live with the woman order than his wife. Disciplinary Proceedings were initiated against him and it has found that he was guilty of bigamy. A show-cause notice, dated 5 August 1983, was issued to him, directing him to show cause as to why he should not be punished by reverting him to the post of "helper" for a period of three years, from the rank of the "Assistant Operator". He submitted his explanation thereto in December 1983. A memo, dated 11 September 1984, was issued by the third respondent that the show-cause notice issued earlier in 5 August 1983 was cancelled, but on the same day, another memo was issued by the third respondent, calling upon the petitioner to show cause as to why the punishment of removal from service should not imposed on him. At that stage, the petitioner approached this Court with this writ petition, praying for the issue of a writ of certiorarified mandamus to call for the records and to quash the same.
2. The contention of the petitioner in short is that the entire disciplinary proceeding is unsustainable in view of the fact that bigamy is not a misconduct, as defined by the Standing Orders, governing his services. It is also contended that if the management wants to enforce some other condition, which is found in the Tamil Nadu Electricity Board Employees Conduct Regulations, it should have taken appropriate proceeding for modifying the standing orders, as prescribed by the Industrial Employment (Standing Orders) Act, 1946.
3. Standing Order 30 sets out the acts and the omissions constituting misconduct. There is a list of 36 such acts and omissions. Standing Order 31 provides for punishment for misconduct and Standing Order 32 provides for the procedure to be followed in disciplinary cases.
4. Action has been taken against the petitioner in this case on the ground that he has violated regulation 25 of the Tamil Nadu Electricity Board Employees Conduct Regulations, which reads thus :
"25. Bigamous marriage :
(i) No employee shall, enter into or contract a marriage with a person having a spouse living;
(ii) no employee having a spouse living shall enter into or contract, a marriage with any person;
Provided that the Board may permit an employee to enter into, or contract, any such marriage, as is referred to in Cl. (i) or Cl. (ii) if it is satisfied that :
(a) such marriage is permissible under the personal law applicable to such employee and the other party to the marriage; and
(b) there are other grounds for so doing."
5. It is argued by learned counsel for the petitioner that regulation 25 of the Regulations cannot prevail over the provisions of the Standing Orders. According to him as bigamy is not one of the acts of misconduct, as contemplated by the Standing Order, no disciplinary action can be initiated against him as per the regulation 25. Our attention is drawn to regulation 30, which is in the following terms :
"In respect of matters in these regulations for which there is provisions also in the Standing Orders for the employees of the Board framed under the Industrial Employment (Standing Orders) Act, 1946, the provisions in the Standing Orders shall prevail in regard to the employees governed by the Standing Orders."
According to the learned counsel, the matter of acts and omissions which would amount to misconduct is provided in Standing Order 30. In this connection, learned counsel for the petitioner has also drawn our attention to sub-sec. (2) of S. 3 of the Industrial Employment (Standing Orders) Act, 1946. That sub-section reads that provisions shall be made in such draft for every matter set out in the schedule which may be applicable to the industrial establishment, and where Model Standing Order have been prescribed, shall be so far as is practicable in conformity with such Model Standing Orders. The expression "every matter" is found in that sub-section. In the schedule item (9) relates to suspension or dismissal or misconduct. The last part of the item is provided in Standing Order 30 of the Standing Orders, i.e., acts or omissions, which constitute misconduct. It is further contended that even if there is an offence, it is not punishable under the Standing Order 30. In support of this contention, reliance is placed by learned counsel for the petitioner on the judgment of the Supreme Court in Glaxo Laboratories (India), Ltd. v. Labour Court, Meerut & Ors. [1984 I L.L.N. 57] in which the Supreme Court has held in unmistakable terms that some acts of misconduct not enumerated in the Standing Orders as the acts of misconduct, cannot be considered enough to impose penalty against a worker, who is governed by the Standing Orders. The relevant passage in the judgment reads thus, in Para 23 at page 69 :
"... 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 nonetheless 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 Sri Shanti Bhushan that some other act of misconduct which would be per se be an act of misconduct though not enumerated in Standing Order 22 can be punished under Standing Order 23 must be rejected.'
6. This is followed by a Division Bench of this Court in S. Alamelu v. Superintending Engineer, South Arcot Electricity System South, Villupuram 1990 II CLR 362, which is identical to the present case and which relates to an employee under the Electricity Board. The very same regulation 25 was construed by a Division Bench of this Court. In that case, a lady assistant got married to her younger sister's husband without obtaining the prior permission of the Board. A memorandum of charge was issued, treating it as a misconduct under the Tamil Nadu Electricity Board Employees Conduct Regulations. The said charge memo was challenged by her in a writ petition, which was dismissed. Thereafter, she preferred an appeal and the Division Bench of this Court, while allowing the writ appeal held that no doubt regulation 25(2) would be an embargo on a woman employee contracting a marriage with any person who has a wife living without obtaining the permission of the Board, but the Standing Orders under the Industrial Employment (Standing Orders) Act having got formulated and certified and they having not provided for such a misconduct and there being no provision therein for such the eventuality, the regulation would not prevail and could not be invoked to take the disciplinary action. The Division Bench followed the judgment of the Supreme Court in the above case and extracted some passages therefrom. The Division Bench observed as follows, in Para 7, at page 493 :
"... 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
Raskilal Vaghjibhai Patel v. Ahmedabad Municipal Corporation and Another [
1985 - II CLR 65], 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 pronouncements has not at all dealt with the question of the overriding effect 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."
7. The above ruling of the Division Bench will apply in all fours to the present case.
8. Learned counsel for the respondent contends that the conduct regulations, are framed under S. 79(c) of the Tamil Nadu Electricity Board Act and that the Board is empowered to frame such regulations. According to learned counsel, the Standing Orders do not exhaust acts and omissions of misconduct and if there is an act of misconduct, which by itself is a misconduct, it can be considered by the management under the regulations and there is a provision therefor. It is his contention that the matter of bigamy is not provided for in the Standing Order and that regulation 30 will save the disciplinary proceedings in the present case. In support of his contention, he places reliance on the judgment of the Supreme Court in Mahendra Singh Dhantwal v. Hindustan Motors [1976 - II L.L.N. 304]. The Supreme Court said in that case, in Paras 22 and 23, at pages 309 and 310 :
"22. 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 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.
23. When, therefore, the Tribunal has found as a fact, after taking note of the history and the entire circumstances of the case that that termination was on account of misconduct of the employee it is difficult to hold that there is any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found is not within the four corners of the description of the various misconducts mentioned in the company's Standing Orders. It is not possible therefore, to accept the submission that the Tribunal committed an error of law or of jurisdiction in entertaining the application under S. 33A."
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 Laboratories (India) Ltd. [1984 - I L.L.N. 57] case (vide 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 judgment 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.
10. Learned counsel for the respondent invites our attention to the decision in M. R. Savant v. G. M. Mather and Platt (India) Ltd., and Others [1992 - II L.L.J. 394], 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 enumerate 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 that field.
11. Learned counsel for the respondent referred to the judgment of the Orissa High Court in Kelucharan Das v. Orissa S.E. B.D. & Anr. 1992 II CLR 232. That was a case in which there was no provision relating to superannuation in the Standing Orders. The Division Bench of the Orissa High Court in the said decision held that the conduct regulations framed by the Board would apply and that there was no conflict between the Standing Orders and the regulation. The said ruling does not help the respondents in this case in any manner.
12. It was also brought to our notice by learned counsel for the petitioners that a decree for divorce has been passed in favour of the petitioner against his first wife in O.M.S. No. 18 of 1984 by this Court.
13. It follows that the disciplinary proceedings initiated in Memo No. SE/P&A/ETPS/ADMN. 71/A/2F. 30/D. 1408 of 1984, dated 11 September 1984, against the petitioner pursuant to the proceedings in Memo No. SEC/ETPS/ADM/II/A. s/D. 157 of 1982, dated 14 May 1982, are liable to be quashed and accordingly they are quashed. However, there will be no order as to costs.