TMI Blog1959 (7) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... he new committee of the society sought the assistance of the respondent, namely, the Divisional Superintendent of the Central Railway at Nagpur, for getting proper accounts from the outgoing committee of the society on the allegation that the outgoing committee had not handed over cash and accounts to the newly elected committee. The Assistant Register of the co-operative Societies also complained to the respondent that proper accounts of the society were not forthcoming. The respondent thereupon ordered the suspension of petitioners 1 and 2 on 27 February, 1958. Petitioner 3 was not suspended. Charges were framed against all the three petitioners by the respondent on 2 November, 1958, 8 November, 1958 and 5 December, 1958 respectively. The charge against petitioner 1 was that while he was the president of the society during the period from 1 July, 1956 to 31 August, 1958, he failed to discharge his duties and responsibilities as prescribed in the bylaws of the society, resulting in excess credits being granted to members and the non-recovery of credit dues from members, that he did not check the credit and proper posting of the cash book, stock book and other account books to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners pray for appropriate writs, orders and directions. 3. This is a case where the Central Railway wants to take disciplinary action against three of its servants for alleged serious misconduct. The Governor-General has made rules under Sub-section (2) of S. 241 of the Government of India Act, 1935, which are to be found in the Indian Railway Establishment Code. These rule have continued to be in force after the Constitution of Indian by virtue of Art. 313 of the Constitution. Rule 2 of Chap. XVII, which is numbered as 1702 in the code, enumerates the penalties which may, for good and sufficient reasons, be imposed upon railway servants. The penalties enumerated include dismissal from service. Rule 6 in Chap. XVII which is rule 1706 in the Code enumerated the circumstances under which a railway servant is liable to be dismissed from service and these circumstances are : (i) conviction by a criminal court, or by court-martial, or (ii) serious misconduct, or (iii) neglect of duty resulting in, or likely to result in, loss to Government or to a Railway Administration, or danger to the lives of persons using the railway. 4. It is, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 485 onwards. Vide also judgment of this Court in Madhosingh v. State of Bombay . 7. The learned counsel for the petitioners however contends that these are nor proper tests and that the proper test is that laid down in laws v. London Chronicle, Ltd. According to the learned counsel, the test there laid down is that the misconduct must be inconsistent with the fulfilment of the express or implied conditions of service or such as to show that the servant has disregarded the essential conditions of the contract of service. No doubt the expression whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service is used in this case. This was a case of alleged act of disobedience on the part of an employee Miss Jean Maude who had been employed as an advertisement representative by a company. It was alleged that she left the conference room in deflance of the manager's request to remain at the conference room, and it was held that wilful disobedience to the lawful and reasonable order of the master justified summary dismissal. It was also held that the servant can be dismissed if he is habitually ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Jean in leaving the conference room did not amount to such a wilful disobedience of an order, such a deliberate disregard of the conditions of service as justifying a summary dismissal. It is contended by the learned counsel for the petitioners that this case lays down the only correct test to be applied in regard to misconduct for which an employee can be dismissed by the employer. 10. No doubt in this case it is observed that if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. But, in our opinion, there is no real distinction between this test and the ten illustrative types of misconduct enumerated earlier in this judgment as types of misconduct for which a servant can be dismissed. In Laws v. London Chronicle, Ltd., the test laid down is that the misconduct must be inconsistent with the fulfilment of the express or implied conditions of service in order to justify dismissal. The ten illustrative types of misconduct enumerated earlier are illustrations of implied conditions of service. The implied conditions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurrence of the employee. In every case, it will be a question of fact whether such a change of duty is derogatory, inconvenient, dangerous, etc. ... 13. But the case is distinguishable because there the employee was asked to do additional duties. Every employee is always expected to be faithful in the discharge of his duties and to justify the trust reposed in him by his employer. Every employee is expected to behave himself so as not to damage or prejudice the interest or reputation of his master, whatever be the sphere of activities of the employee. These principles will be applicable to every employee right from the beginning of his employment up to the termination of his employment. They are not additional duties. The case relied on by the learned counsel for the petitioners does not, therefore, come to his assistance. 14. As regards the contention that the General Manager of the Central Railway has not framed subsidiary rule 4 the learned counsel for the respondent has produced the Central Railway Weekly Gazette dated 5 November, 1956, to show that the General Manager has himself framed the subsidiary rule 4. We, therefore, reject the contention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no fixed rule of law defining the degree of misconduct which will justify dismissal. 19. The question, therefore, is whether the alleged conduct of the three petitioners amounts to such serious misconduct. That question can be decided only after all the facts are brought on record. At this stage the enquiry has just commenced and all the necessary facts are not brought on record. It would be open to the employees (petitioners) at the time of the enquiry to show that there are facts to justify the inference that the alleged misconduct will not amount to serious misconduct within law. That would depend on the relations between the co-operative society and the Central Railway, the actual misconduct alleged and proved, and its gravity. Whether the conduct is such as to be prejudicial to the interest of the Central Railway depends on the proof or disproof of certain facts such as the nature and degree of the interest of the Central Railway in the society. At this stage, therefore, we are not prepared to hold that in this case facts have been proved to hold that the misconduct alleged against petitioners 1 and 2 does not amount to serious misconduct. 20. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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