M.H. Beg, J.
1. The petitioner, the New Victoria Mills Ltd., Kanpur, prays for a writ of certiorari to quash the award of a labour Court dated 16-9-1966 (Annexure 27 to the writ petition) and consequential directions. The impugned award was given after this Court had caused, on 6-8-1963, in Civil Miscellaneous writ petition No. 2720 of 1959 connected with civil miscellaneous writ petition No. 2014/58, a previous award dated 26-6-1958 given by the same Labour Court adjudicating the same question between the same parties. Mr. Justice Dwivedi had ordered in that case:--
'I direct the Labour Court to re-hear the dispute and decide the question of fair hearing in the light of my judgment.'
The question for adjudication before the Labour Court was framed as follows:--
'Whether the employers have wrongfully and/or unjustifiably dismissed Sri Jagannath, son of Sri Kunji, T. N. 9, and Sri Chhotey, son of Sri Chhedi, T. N. 3, sweepers, with effect from February 7, 1967, if so, to what relief are the workmen concerned entitled?'
The employers had tried and found Jagannath and Chhotey, opposite parties 2 and 3, guilty on a charge framed as follows:
'Aap 6-11-1954 ki rat me ek baje sagar peshi me cement ki bori chorate hue pakade gaye aur usi samay aap police me bhi dediye gaye. Aap jawab deejiye ke chori ki case men aap ke khilaf kiyon na karwai kiya jai and thereby committed an act of misconduct under Standing Order 23 (D) (Theft).'
This charge framed in language which was a mixture of Hindi and English, as indicated above, certainly put the matter with which the accused were charged fairly and squarely to them in language which was quite intelligible to them. The questions which were argued before this Court on the previous occasion were whether the charge had been properly framed and whether the accused had been given a fair hearing. Dwivedi, J., who quashed the previous award, had observed in the course of his judgment: 'I have already stated that the award is founded on the only ground that the domestic enquiry did not give fair hearing to the employees.' After coming to this conclusion, Dwivedi, J. held that the charge contained full details of the misconduct alleged against the workmen. It was also held there that the Labour Court had proceeded on a number of irrelevant considerations in coming to the conclusion that the accused had not got a fair hearing.
2. In the award now assailed by the petitioner, the Labour Court has observed that the case had been sent back by this Court in order to determine whether there was a fair hearing before the domestic tribunal. After making this observation, the Labour Court, for some reason, made no effort whatsoever to decide the question of fair hearing and seems to have forgotten all about it. Perhaps the Labour Court was of opinion that the direction to rehear the dispute meant that the whole case was re-opened and could be decided entirely afresh on whatever grounds the Labour Court thought fit to take. I may observe that even if the Labour Court's assumption that every question was open to it for adjudication afresh could be justified, it should have given a decision on the question this Court had expressly directed it to decide. The order of this Court, as I understand it, was that, although the dispute is to be reheard, a fresh decision must be given, in any case, on the only question which was apparently raised before the Labour Court and before this Court on the previous occasion, that is to say, the question whether a fair hearing was given to the workmen by the domestic tribunal. Unfortunately, the labour Court has not given any reason for treating the whole case as open to it for re-adjudication without finding that the workmen did not get a fair hearing.
3. The labour Court held that a charge for misconduct brought by an employer against a workman need not be restricted to theft committed on the company's premises or during working hours of the operative. It relied on the decision of the Supreme Court in Central India. Coal Fields v. R.B. Sobnath, AIR 1961 SC 1189, in order to decide issue No. 2 in favour of the employers. It was held in that case that improper conduct of an employee committed even outside the Company's premises and also outside the working hours ' could be misconduct under the standing orders. The Labour Court framed and decided an additional issue No. 2 against the workmen: Whether the Standing Orders of the concern were applicable to the workmen who are employed at the bungalows of the officers of the mills? Apparently, the workmen had raised the question whether a theft alleged to have been committed at the bungalows of the officers by employees could constitute misconduct within the meaning of that term as given in the Standing Orders. Although the Labour Court held that the Standing Orders would cover theft by a workman outside the Company's premises, it took the view that, there being no evidence that the cement stolen belonged to the Company, no charge for misconduct could be made out.
4. I have been taken through the written statements filed on behalf of the employers and the workmen before the Labour Court. The fresh question on which the Labour Court seems to have decided the whole case on this occasion, whether the cement alleged to have been stolen was the property of the Company or not, was not raised any where by the parties. The Labour Court, however, observed that the Managing Officer's bungalow on which the theft was committed was two and a half miles from the factory and did not belong to the factory. It practically negatived the effect of its own finding that the Standing Orders applied to a case of theft outside the premises of the Company by Introducing the condition that the theft had to be shown to be of the Company's property. It held that, as no evidence was produced at the domestic inquiry that the cement alleged to have been stolen was the property of the Company or that the theft was in connection with the Company's business, there was no evidence whatsoever to sup-port the charge of misconduct. In other words, the Labour Court construed the charge as confined to theft of the property of (the Company or one committed in connection with the Company's business and misconduct as confined to such theft. It held the finding of the domestic tribunal to be 'perverse' on the ground that there was no evidence at all about the ownership of the cement said to have been stolen.
5. It seems very doubtful whether the Labour Court could proceed at a tangent in this fashion at all at any stage to decide a question of fact which was not raised by the workmen either at their trial or before the Labour Court in their written statement. If the ownership of the property by the Company or its connection with the business of the Company was an essential ingredient of the charge of misconduct it might have been possible to say that the evidence in support of the charge could not constitute misconduct at all and that the finding of the domestic tribunal was perverse for that reason. In the case before me, the facts stated in the Hindi language and put to the employees could, if proved, constitute misconduct quite apart from the question whether the property stolen was that of the company or of an officer or director of the Company.
6. It is true that the charge mentions a provision of the Standing Order which only applied to a case of theft of the property of the Company or of property stolen in connection with the business of the Company. But, this provision was mentioned only in the part of the charge relating to the particular provision under which the alleged misconduct was supposed to be an offence. The factual ingredients of the charge of alleged misconduct were already put to the employees in Hindi. The only mistake in the charge was that the letter 'D' had been put within brackets after the words 'Standing Order 23.'
Even in criminal trials to which the warrant case procedure is applicable under the Code of Criminal Procedure, such a slight mistake or defect in a charge could not possibly vitiate the trial. In the trial of summons cases by Magistrates all that is required is that facts which constitute an offence should be put to the accused and either admitted or proved. Even if the allegation put to an accused at a summons case trial is that the facts put to the accused constitute an offence under a section which does not apply, the offender can still be punished under the provision properly applicable on facts proved as provided by Section 246 of the Code of Criminal Procedure.
7. The Labour Court appeared to have misdirected itself with regard to the meaning of the term 'perverse' with reference to a decision. The Labour Court relied on Doom Dooma Tea Co. Ltd. v. Assam Chah, Karamchari Sangha 1960-2 Lab LJ 56 (SC) where the following grounds upon which the result of a trial by a domestic Tribunal could be set aside were given: '(1) when there has been want of good faith; (2) when there is victimisation or unfair labour practice; (3) when the management has been guilty of a basic error or violation of a principle of natural justice; and (4) when on the materials the finding is completely baseless or perverse.' Mr. J.N. Tewari appearing on behalf of the opposite parties tried to justify the view taken by the Labour Court on the ground that the trial of the opposite parties by the domestic Tribunal was vitiated by a 'basic error' and also on the ground that, on the materials on the record, the finding was completely baseless or perverse.
8. It has been conceded by Mr. Tewari that Standing Order 23 does not give a definition of misconduct at all but only gives instances of it. The Standing Order 23 begins as follows: 'The following acts or omissions will be treated as misconduct.' The Standing Order ends after mentioning various kinds of misconduct, with the words: 'and any other misconduct.' Thus, the language of the Standing Order itself shows that it does not define misconduct or illustrate it exhaustively. If the particular facts alleged, which were put to the employees in the Hindi language, constituted misconduct, the mere insertion of a wrong provision while stating the provision of the Standing Order applicable could not possibly vitiate the charge or the trial itself.
9. In this case, the wrong provision was introduced by merely inserting an additional letter indicating the particular head of the standing order sought to be applied. The principle contained in Section 537 of the Criminal P. C. would cure such a defect even in the proceedings of a regular criminal Court in a warrant case trial where charges have to be formally framed. The error could neither be basic nor could the absence of any evidence about the ownership of the property alleged to have been stolen make the decision of the domestic tribunal perverse. As already indicated, the view of the Labour Court is itself vitiated by basically and patently erroneous views about what constitutes a misconduct and the meaning of a 'perverse' decision.
10. I may also mention that the award contains no discussion of any specific findings given by the domestic tribunal whose verdict was characterised as 'perverse'. On this occasion, the only ground upon which the award is really based is that the absence of evidence relating to the ownership of the cement alleged to have been stolen vitiated the whole trial and made a finding of guilt for the charge of misconduct perverse. This raises the question of the meaning of 'misconduct.'
11. In Tata Oil Mills Co. Ltd.v. The Workmen AIR 1965 SC 155 it was held that although misconduct to be covered by the particular Standing Order placed before their Lordships had to be shown to be rationally connected with the employment of the offender the mere fact that alleged disorderly behaviour took place at a distance from the factory where the employees worked could not take the disorderly behaviour outside the purview of misconduct. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR1960 SC 806 an employee of the Company manufacturing textiles was dismissed by his employers for misconduct on the ground that he had stolen the bicycle of a clerk of the Company. It could be urged there also that the offence was committed outside the course of employment of the Company. The dismissal for misconduct was, however, not considered improper by their Lordships of the Supreme Court. In that case, the dismissal had taken place pending a criminal trial for theft in which the employee was finally acquitted. It was held that the Labour Tribunal could not assail the proceedings on questions of fact even though it is better for an employer to await the decision of a criminal Court in a grave case so that the defence of the employee in the criminal trial may not be prejudiced. But, theft of another employees' property was held to constitute misconduct justifying the dismissal. Presumably the offence of theft, wherever theft is committed by an employee, shows that the employee is dishonest and his reliability as a worker may be affected for that reason. Such a defect in a sweeper, who necessarily has access to residential premises of the employer and opportunities of committing theft, is particularly dangerous. Therefore, a workman employed as a sweeper who has either been proved to have committed a theft or to have so acted as to facilitate or aid theft may very well be guilty of such misconduct as to merit dismissal. All that has to be shown is that the alleged misconduct affects the competence of the employee for the particular kind of work he does. The misconduct for which an employee can be dismissed need not necessarily have been committed in the course of his employment. It is enough if it is of such a nature as to affect his suitability for a particular employment. It is then reasonably connected with the question whether the workmen can be retained in that employment.
12. Another question raised by Mr. J. N. Tewari was that the workmen, opposite parties 2 and 3, having been acquitted by a criminal Court on the charge of theft of cement, could not be tried by the domestic tribunal and dismissed for the same offence. Learned counsel cited P.E. Ponnurangarn v. Mysore Goyernment Road Transport, AIR 1962 Mys 84 where it was held that, if an offence punishable by a criminal Court is alleged against a civil servant and is actually sent to a criminal Court which acquits the civil servant, 'it would be extremely improper for any disciplinary authority to inquire again into that charge and hold him guilty on the very evidence which was produced before the criminal Court and which it disbelieved.' It was also held there: 'To permit that would be to countenance an improper circumvention of the order of acquittal made by a competent criminal Court.' This was a case of disciplinary proceeding against a civil servant. An inquiry into the same charge was held to be improper although it could not be held to be illegal for contravening the principle contained in Artilce 20 of the Constitution. The charge in disciplinary proceedings is not identical with that at the criminal trial. The scope of 'misconduct' is wider than that of a criminal offence such as theft. Disciplinary proceedings cannot be equated with a criminal trial. I also doubt whether, this principle of propriety, laid down for disciplinary proceedings against civil servants, would be applicable with equal force to proceedings before a domestic tribunal by an employer against an employee. In the present case, the dismissal on the charge of misconduct took place before the workmen were given the benefit of doubt and acquitted at the criminal trial under the Criminal Procedure Code. The mere fact that the case was sent to a criminal Court could not bar a domestic inquiry. The Labour Court was only concerned with the correctness of the proceedings before the domestic tribunal. The main ground, however, on which I overruled this objection raised for the first time before me in this Court is that it was not raised at all either before the Labour Court or before this Court on the earlier occasion as it could have been done.
13. This brings me to the principle which should, in my opinion, be applied in such cases, quite apart from the opportunity which the opposite parties Jagannath and Chhotey had of raising such a plea before the Labour Court, this is the second occasion which the opposite parties have had of raising this question in this Court as an alleged bar to proceedings for dismissal by the employer. On the earlier occasion when this matter was considered by my learned brother Dwivedi, J. in this Court no such objection was taken at all. Even if it is an objection which was open at that stage, so that it might and ought to have been taken then, I would apply the principle of constructive res judicata and hold that the opposite parties cannot invoke this ground in this Court now. The principles of res judicata are quite wide and general in application. They are designed to prevent unending litigation and piecemeal re-agitation of the same dispute on different grounds before different or same Courts. If the ground was open to the opposite parties on the earlier occasion in this Court and they did not take it, I think they are precluded now from raising it on this occasion before this Court.
14. As already observed, this Court had sent back the dispute for re-hearing and for decision of the question whether Jagannath and Chhotey opposite parties 2 and 3, had a fair hearing before the domestic tribunal. That question ought to have been decided by the Labour Court in compliance with the orders of this Court, but it did not do so. Taking a charitable view of its error, it may be said that the Labour Court did not deliberately flout the orders of this Court but was under a misapprehension about the duty it was directed to perform.
15. It was only if the trial of Jagannath and Chhotey, opposite parties 2 and 3, was actually vitiated by a violation of principles of natural justice, so that it could be held that they did not get a fair hearing, that the Labour Court could enter into questions of fact itself and then decide them. As their Lordships of the Supreme Court have pointed out, in AIR 1965 SC 155 (Supra), the Industrial Tribunal can discard the findings of the domestic tribunal and give its own findings on questions of fact provided the proceedings before the domestic tribunal are vitiated by a basic error such as violation of principles of natural justice. In the present case, the only alleged basic error which was open for the Labour Court to adjudicate upon was whether the workmen had obtained a fair hearing before the domestic tribunal. It was only after it had arrived at the conclusion that they did not have a fair hearing that the Labour Court could have entered into merits of the case at all. The award of the Labour Court, however, contains no finding which could, so to say, open the door for entering upon a consideration of question of fact.
16. For the reasons given above, I quash the award of the Labour Court dated 16-9-1965 and issue fresh directions as follows: The Labour Court shall decide the specific question whether the opposite parties Jagannath and Chhotey had a fair hearing before the domestic tribunal. Only if it arrives at the conclusion that they did not have a fair hearing will it proceed to re-examine the facts relating to the alleged misconduct for itself. If it is able to and does re-examine the facts, it will bear in mind the meaning of 'misconduct' as explained above. If the workmen had a fair hearing, it will not be open for it to consider any other question.
17. There should be no room now for the Labour Court to misapprehend the orders of this Court. The parties will bear their own costs.