1. This is an appeal against an order of Sri N. M. Majmudar, Judge, First Labour Court, Ahmedabad, by Manubhai Gordhandas rejecting the application of the appellant. It appears that the respondent company had received information that certain workers employed by them were practising double employment by attending the New Swadeshi Mills in the third shift commencing from 12 midnight. The manager, therefore, ordered the labour officer, Sri H. K. Jani, to go to the New Swadeshi Mills and to detect them working in the third shift if possible. Thereupon Sri Jani attended the New Swadeshi Mills on 14 October, 1954, at 1-00 a.m. midnight and by the help of a timekeeper of the said mills found out three persons working in the mills in the third shift by giving wrong names. The appellant was one of them and he worked in the New Swadeshi Mills as Mukeshchandra Manubhai. A show-cause notice was given and an inquiry was held thereafter. The show-cause notice alleged that an information was received that after working for eight hours in the Arvind Mills, the appellant was working for another eight hours in the New Swadeshi Mills : that on making inquiries it was found that on 14 October, 1954 having worked in this mill in the third shift from 3-30 p.m. to 12 midnight the appellant has also worked in the third shift of the New Swadeshi Mills adopting the name Mukeshchandra Manubhai; that by reason of this act he has deliberately exposed the mills to prosecution under the Factories Act; that this kind of misconduct cannot be tolerated; he was therefore asked to show cause why he should not be dismissed. An inquiry was held and the appellant admitted his guilt and gave an admission of his guilt in writing and also an apology. Certain question regarding his past conduct were put to him and the management thereafter taking his past conduct into consideration passed an order dismissing him. The order of dismissal has been considered to be legal and proper by the lower court.
2. It has been urged before me that it is not true that the appellant had exposed the respondent company to criminal prosecution under the Factories Act. Reliance has been placed on S. 60 read with S. 2(e) which are follows :-
'Section 60 : Restriction on double employment :- No adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any factory, save in such circumstances as may be prescribed.
Section 2(e) : 'Day' means a period of twenty-four hours beginning at midnight.'
It has been submitted that so far as respondent mills were concerned there was no evidence that on 14 before coming to work in the second shift at 3-30 p.m. he had worked elsewhere on that day; that the respondent mills in any event would therefore not be exposed to any criminal prosecution if he worked there that day. If was also urged that so far as even the other mill was concerned a new day had begun at midnight of 15 according to the definition of 'day' and that therefore it was not double employment under S. 60; that there was neither any evidence nor was he charged with having worked either on 14 in the New Swadeshi Mills or for having worked in the second shift on 15 in the Arvind Mills, that even if there was evidence that he had actually worked in the second shift in Arvind Mills on 15 in any event the worker could not blamed because the company had knowledge that he had worked with the New Cotton Mills from midnight of 15.
3. Sri Mehta, however, submitted that the definition of 'day' in S. 2(e) applies only when there is nothing repugnant to the subject or context and that the words 'any day' used in S. 60 must not be confined to day as defined in S. 2(e).
4. It is not necessary for me to express any opinion on the submission made. It does not lie in the mouth of the worker to raise this extremely technical contention in appeal. If he had raised it at the time of the enquiry before the manager I have no doubt that further evidence would have been led by the management to show that he had worked in the New Swadeshi Mills in the night shift of 14 in Arvind Mills in the second shift of 15 and the charge would have amended accordingly. Even additional evidence of his having worked similarly on other days would have been produced. This has not been done only because of his having admitted his guilt. In these circumstances it must be assumed that he was guilty of double employment which would have exposed or tended to expose the company to prosecution and which also is an act subversive of discipline. An act which is inconsistent with the fulfilment of the express or implied conditions of service would be as held by the Labour Appellate Tribunal Court an act subversive of discipline 1953 II L.L.J. 876.
5. As regards punishment also I do not think the punishment of dismissal for an offence of this nature can be considered to be harsh or excessive. A serious view must be taken of an offence of this nature. It exposes the employer to prosecution. It deprives the employer of the best services of the worker concerned for it would be humanly impossible for a worker to give his best when he works continuously for 16 hours in a day. It is anti-social inasmuch as it deprives another worker of an opportunity of employment. In the present instance that apart the management has considered the past conduct of the appellant and he has dismissed only after taking the past conduct of the worker into consideration. Even questions have been put at the inquiry regarding his past conduct. This is clear from the order passed by the manager.
6. It has been also urged before me that one worker Anandlal Laxmanlal though he had committed an identical offence has been taken back. That worker was dismissed in the first instance but taken back. In the matter of punishment as also in the matter of granting pardon the management must have a certain amount of discretion and this could be interfered with only for very good reasons. In this instance the other man appears to have been reinstated because of his unusually long service (Ex. 30). The appellant had joined the service in 1948, whereas the other person Anandlal Laxmanlal was in the employ of the company since 1933. In my opinion the management has done nothing wrong if they re-engaged him in view of his service extending over twenty years and did not grant pardon to the appellant.
7. This appeal is dismissed.