P L D 1960 Dacca 759 (PLP)

In this case action against the plaintiff‑ appellant is said to have been taken under Clause (i) of sub‑rule 1 of Rule 15 which provides: "

15. Disciplinary Action for misconduct. Dismissal or Summary discharges. The head of Department may dismiss or summarily discharge a man without notice or compensation 'in lieu if he is found guilty of misconduct. The following acts and omissions shall be treated as miscon duct. (i) habitual negligence or neglect of work." As has already been stated above, it has been found concurrently by both the Courts below and it is no longer in controversy that the defendant No. 2 Mr. Robertson was the Officer‑in‑charge of the defendant company's Installation at Gupta Khali and as such the Head of the Department within the meaning of the above rule so far as the personnel attached to the aforesaid Installation were concerned. He was their appointing authority as well. He was, therefore, fully competent to dismiss the plaintiff and there is no dispute regarding this now. The only point of divergence between the parties in this behalf is whether the initial word "habitual" in rule 15, Clause (i) quoted above governs the word "negligence" alone or it qualifies "negligence" and "neglect of work" both. According to the learned Munsif the term "or" wedged in between the expressions " habitual negligence " and "neglect of work" is "conjunctive `and not' disjunctive 'in as much as the said two expressions have been classed together in the same clause instead of being inserted as distinct and independent clauses which would have been done if they were intended to be disjunctive. The learned Subordinate Judge on the other hand, takes it to mean a conjunction introducing an alternative and applying to it this meaning, concludes that the conjunction 'or' qualifies only 'negligence' and not ` neglect of work' so that "even for an isolated act of neglect of work on the part of the plaintiff his discharge or dismissal would be justified." Negligence refers to a certain state of mind‑a sort of a nega tive attitude‑and signifies slackness or inattention while neglect of work ' refers to physical action and in simple language mean inaction. A certain state of mind on the part of a worker, howsoever undesirable that may be, can hardly be a source of any immediate or grave danger to his employer and the latter may, without running any serious risk allow a particular worker sufficient, time or opportunity to mend himself but physical inaction with respect to a particular duty assigned to a worker may, according to the nature of the duty, entail serious conse quence or even cause an immediate havoc or disaster. No employer can conceivably put up with such inaction and think of giving the delinquent time or opportunity to reform himself. Thus in one case there appears to be scope for leniency on a compassionate view of human frailties and foibles, while in the other, the risk involved appears to be too grave serious to allow a care free or lenient attitude of "wait and see". To my mind, these exactly are the contingencies that the two expressions in question occurring in rule 15 (1) i.e. "habitual negligence" or "neglect of work" are meant to provide for and in this view of the matter, I am strongly inclined to think that the qualification "habitual" no matter whether the term "or" wedged between the two, is conjunctive and not disjunctive, as found by the learned Munsif or a conjunction introducing an alternative, as the learned Subordinate Judge is inclined to read it on the authority of the Oxford Dictionary, governs the term "negligence" alone and not the expression "neglect of work" also. Were it otherwise i.e. if the said qualification were taken to govern "negligence" and "neglect of work" both, the company would, in fact, be landed in an unworkable or impossible position, in that it shall find itself unable to get rid of a worker, even though a particular act of neglect of duty on his part might have caused a heavy loss and involved danger or damage to human life as well as valuable properties. In this behalf I am at one with the learned Subordinate Judge and fully endorse the views expressed by him in ‑the following observations: "In that case the plaintiff could have well argued that he cannot be discharged without the proof of `habitual negligence" and "habitual neglect of work." This matter must, be judged from another angle. The clause "neglect of work" has been left unqualified simply to meet those cases of single grave "neglect of work" which cause damage to life and property. "Here, the plaintiff has been conclusively found asleep while in charge of an engine which, if unattended, might have burst out and exploded the whole Guptakhali Installation, and that would have taken valuable lives and property." It may also be noted that clause (i) appears to be the only provision for dealing with delinquencies of the nature implied by negligence or neglect of work and hence if the qualification "habitual" were taken to govern both the expressions and not `negligence' alone, the position would come to this that the Standing Orders make no provision for dismissal or summary discharge of the company's workers for a single act of neglect of duty, even though that may be fraught with most serious consequences or cause an immediate danger or disaster in relation to the interest and property of the Company. That appears to be absurd. Incidentally reference may for the purpose of analogy be made to clause (e) specifying a particular act that shall be treated as misconduct. It runs as follows: "habitual absence without leave or absence without leave for more than 10 days". As far as I can see, there is no scope for any argument that the initial word "habitual" occurring in the above clause qualifies its second part i.e. the clause "absence without leave for more than 10 days" as well. Obviously the said word governs the first part i.e. the Clause " absence without leave" only so that a single instance of "absence without leave for more than ten days" would fully justify dismissal or summary discharge which is perfectly sensible. Thus on a careful examination of the provision in question in all its bearings and aspects, I am led to accept the view of the learned Subordinate Judge and hold that the qualification `habitual' occurring inn Clause(i) i) governs the term `negligence' alone and not the expression `neglect of work' also. Proceeding the learned Subordinate Judge has further opined that even if both the expressions referred to above were read as subject to the aforesaid qualification i.e. `habitual' the order of dismissal in the present instance, i.e. the dismissal of the plaintiff, would still be justified in view of the fact shown by his service cards Exh. E series, that his past service, far from being unblemished as claimed, is dotted with several black marks, as contended by the defence. The last of such remarks is a warning administered to him officially for disobedience of orders on 4‑8‑52, which, it may be noted, was within a period of two years of the institution of the present suit, for gross dereliction of duty, wherefore he has now been discharged. This brings us to the second contention urged by the learned Advocate for the plaintiff appellant that the learned Subordinate Judge acted illegally and improperly in admitting the plaintiff's service cards in evidence during the hearing of the appeal. It has been argued that since the defendant‑Company did not file these documents or have them admitted into evidence on proof of the same in the trial Court, the learned Subordinate Judge should not have allowed the defendant to make up this omission at the appellate stage as the plaintiff was thus deprived of his due opportunity to test the value and authenticity of those docu ments by cross‑examining the P. Ws. in the light thereof. As observed by the learned Subordinate Judge in his judgment, it is not at all correct that the service cards were not produced during the trial in the Court below. It appears that the Labour Officer of the defendant‑Company Mr. Bell deposed to the past service records of the plaintiff with reference to the service cards and was also cross‑examined by the other side in that behalf. In his cross‑examination he stated "I maintain the service records of all employees there (at Guptakhali). The service records of plaintiff filed in Court were in my custody." Even the plaintiff himself (P. W. 5) appears to have been cross‑examined with reference to the service cards in question, when he stated "These four are my service cards." It is thus clear that the service cards had actually been filed in the trial Court and the plaintiff's party also were fully aware of the same and actually used the said document in the cross‑examination of the defendant‑Com pany's officer concerned. It does not, therefore, seem to lie in the mouth of the plaintiff‑appellant to say that the said documents had not been filed in the trial Court or to complain that he has been prejudiced by reason of their being admitted into evidence at the appellate stage. In support of his contention the learned Advocate for the appellant cited the cases of Kesarmal and another v. N. K. V. Valiappa Chettiar (P L D 1954 P C 101) and Manmohan Das alias Bachhaji and others v. Mst. Ramdei and others (35 C W N 925). The first mentioned case appears to be clearly distinguishable, inasmuch as the documents concerned could be produced at an appropriate stage with due diligence on the part of the party seeking to produce the same and their non‑production was absolutely due to laches on their part, while in the present instance the documents bad not only, been filed in the trial Court but appear to have been actually used .by the parties during the examination of the witnesses on both the sides. In the second case, wherein the application of clause (i) (b) of the rule 27, Order XLI of the Code of Civil Procedure 'has been considered, it has been' held: "'The provisions of section 107 of the Code of Civil Procedure, as elucidated by Order XLI, Rule 27, are not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak part of his case and fill up omissions in the Court of Appeal by adducing fresh evidence there. In a case coming under clause (i) (b) of rule 27, it is only when the Court itself requires additional evidence; that 'is to say, finds it needful in order to pronounce judgment or for any other substantial cause, that such evidence can be admitted. The legitimate occasion for exercise of this discretion is when on examination of the evidence as it stands some inherent lacuna or defect becomes apparent. 'The defect may be pointed out by a party or a party may move the Court to supply the defect but the requirement must be of the Court itself.

The discretion must be very sparingly exercised and one requirement at least of any new evidence must be that it should have a direct and important bearing on a main issue in the case." It is important to note that in the present case the learned subordinate Judge admitted the additional evidence in question mainly for two reasons, In the first place he appears to have been inclined to the view that it was in fact an oversight on the part of the learned Munsif that these were not exhibited as evi dence. That he has observed that "the learned Munsif recorded the deposition on these service cards but he did not make them as exhibits for reasons best known to him." Secondly he, was of opinion that "that these service cards are very essential for the purpose of deciding the present dispute."' In the circumstances the learned Subordinate Judge cannot be regarded to have exercised the discretion vested in him under the above‑mentioned provisions illegally or improperly. It may also be mentioned that this controversy ceases to have any force or substance and nothing whatsoever really turns on it in view of the finding already arrived at above viz., that even a single act of neglect on the part of a worker may in view of its gravity fully justify his dismissal or summary discharge 'under rule 15; clause (i) of the Company's Standing Orders It is there fore; really immaterial whether the plaintiffs' past record of service is unblemished or dotted with black marks, inasmuch as the particular act of neglect, of which he has been found guilty, anal which, as pointed out by the learned Subordinate Judge in his judgment, was fraught with grave consequences, was suffi cient to attract the operation of the above‑mentioned' provision for the purpose of the disciplinary, action taken against him. Mr: Sobhan also contended that since no formal inquiry was held and also since his client was not given opportunity to show cause against the charge levelled against him, the action taken against his client, i e. dismissal of the plaintiff cannot .be supported as justified or legal. It has been found concurrently by both the Courts below that a formal proceeding was duly drawn up against the plaintiff and the charge against him was" sleeping on duty while in charge of the lighting set," and that when the charge sheet was handed over to the plaintiff he admitted his guilt and begged to be excused. That being so, there was, as rightly found by both the Courts below, no scope at all for any further inquiry or for affording the plaintiff any more oppor tunity to show cause against the said charge. That would have been not only meaningless but also farcical, as rightly observed by the learned Munsif, This contention is accordingly negatived as having no force or substance. The last contention urged on behalf of the plaintiff appellant is that the finding of the learned Appellate Court below that the suit in its present form is hit by the provisions of sections 42 and 21 (b) of the Specific Relief Act is erroneous and cannot be supported in law. As stated at the very outset the suit was instituted for a declaration that the plaintiff‑appellant's; dis charge from the service of the defendant‑company is wrongful, mala fide and illegal and for recovery of a sum of Rs. 380 being the arrears of his salary for the months of May and June as well as a further sum of (sic) 60 being the compensation for the physical injuries, mental agony and ignominy caused to him by the company's officer, the defendant No.

2. The learned Munsif found that as a single act of neglect of work did not attract the operation of Rule 15 (1) which is the only provision in the Standing Orders authorising the Head of a Department to dis charge 'or dismiss a‑ member of the personnel attached to his Department, the dismissal of the plaintiff was effected in exercise of a power, of which the Head of the Department in this particular instance was not possessed at all, and as such "did not really exist" and amounted to no dismissal. He accordingly found that in peculiar circumstances of the case the plaintiff had asked for proper reliefs and was entitled to all of them. The Subordinate Judge however came to hold a contrary view and found accordingly that the suit is not maintainable in view of section 42 and section 21 (b) of the Specific Relief Act. On a careful consideration of the question in the light of the arguments advanced I am strongly inclined to accept this view. It is important to bear in mind that the defendant company is a private firm and must as such have a free choice in the matter of appointment and discharge of its employees. The consensus of established authorities, as elaborately referred to and discussed by the learned. Subordinate Judge as well, appears to be that a Court cannot foist upon an unwilling private firm an employee or employees, whom it has thought fit to get rid of, and to that end, rightly or wrongly discharged, or whom, for one reason or the other, the firm is unwilling to accept. Should an employee however feel aggrieved and consider that he has been is wrongfully and illegally discharged, all that he can seek from a Court in consonance with the above mentioned principle is damages and not his reinstatement, which the Court is not com petent at all to order. In other words the proper relief to be sought in such circumstances is damages. Similarly it has been held in the case of Muhammad Mustafa Ali Khan v. District Board, Bareilly and another (A I R 1934 All. 101), that although an employee may establish that he has been wrongly dismissed, still he is not entitled to the remedy of an injunction or of specific performance in that contract involving his personal service cannot be specifically enforced in view of section 21 (b) of the Specific Relief Apt. It is thus clear that the present suit is hit by section 21 (b) as well as the proviso to section 42 of the Specific Relief Act so that the question has been rightly decided by the learned Subordinate Judge. No other contention was urged before me at the hearing of this appeal. I however, feel called upon to observe before I conclude that the plaintiff appellant's claim for compensation for alleged physical injuries etc. is bound to fail also on merit inasmuch as he failed to prove his case in that behalf. Thus all the contentions urged on behalf of the plaintiff appellants having been found against him, the appeal must fail. In the result the appeal is dismissed with costs. The judgment and decree of the lower Appellate Court are upheld. A. H. Appeal dismissed.