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4. It is an admitted position that the institution of the employer is governed by the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946. Model Standing Order 22 provides that any of the acts or omissions therein mentioned on the part of workman amount to misconduct. Reliance is placed on 22(m) which provides "habitual neglect of work, or gross or habitual negligence". The explanation to Standing Order 22 provides that no act of misconduct which is committed on less than three occasions within a space of one year shall be treated as "habitual". Standing Order No. 23 provides for punishment which could be imposed on a workman who may be found guilty of misconduct as prescribed in Standing Order 22. It provides amongst other punishment of dismissal from service. Sub-clause (3) of Standing Order 23 provides that no order of dismissal shall be made except after holding an inquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in clause (4). Clause (4) provides that a workman against whom an inquiry has to be held shall be given a charge-sheet clearly setting forth the circumstances appearing against him and requiring explanation. The workman shall be given an opportunity to answer the charge and permitted to be defended by a workman working in the same department as himself. It further provides that the workman shall be permitted to cross-examine any witness on whose evidence the charge rests. Clause (5)(a) permits the employer to suspend a workman pending the inquiry and clause (5)(b) prescribes an obligation to pay subsistence allowance at the rate mentioned therein during the period of suspension and till the final order is made. Clause (c) provides something akin to the provision that were in Art. 311 of the Constitution before its amendment, namely, a second opportunity to be given to the employee before any punishment is imposed upon him. It provides that if on the conclusion of the inquiry or as the case may be, of the proceedings on a criminal charge, the workman has been found guilty of the charges framed against him and it is considered, after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed, that an order of dismissal or discharge or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer shall pass an order accordingly. Sub-clause (6) casts an obligation upon the manager to take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravation circumstances that may exist while awarding punishment. Standing Order 24 provides that a workman may be warned, censured or fined for any of the acts therein mentioned. We must take note of clause (c) and (d) which provide for negligence in performing duties and neglect of work.

5. The first contention is that on facts alleged there is no misconduct in respect of which an inquiry could have been held or punishment could have been imposed. On behalf of the petitioner it was said that an error and that too a bona fide one cannot be styled as neglect of work or negligence in performing duties. On behalf of the employer it was said that the line which demarcates error from negligence is a thin one and it will have to be decided on the facts and in the circumstances of each case whether what has been alleged is a mere error or a mistake or negligence in performance of duty. Negligence has always been said to be a negative concept. Where there is a duty to take care or exercise skill may indicate negligence but it is equally true that in the day to day work an honest mistake may be committed. The mistake may be of such a nature as by its own gravity it may be indicative of negligence. But every mistake or every error in performing duties could hardly be styled as negligence. Standing Order 22 does not constitute negligence whenever alleged as misconduct. It refers to habitual neglect of work, or gross or habitual negligence. Being aware of how the word "habitual" has to be construed in relation to Standing Order 22(m), Mr. Nanavati said that the case of the respondents in that the petitioner was guilty of gross negligence. We must, therefore, bear in mind that the misconduct alleged against the petitioner in terms is of gross negligence. It is not mere negligence. Mere negligence is not misconduct. That becomes crystal clear if Standing Order 22(m) is read with Standing Order 24(c) and (d). If negligence is gross it would constitute misconduct in respect of which penalty as provided in Standing Order 23 can be imposed. But a slight negligence or neglect of work may be visited with a warning, censure or fine and that becomes clear by the language employed in Standing Order 24.

16. Keeping in view our jurisdiction, namely, that we can interfere with the order when the finding is completely baseless or perverse, could it not be said that before we say a finding is baseless or perverse that there was no misconduct at all on facts alleged and taken as admitted ? Let the facts alleged be taken as wholly admitted. Could a man acting fairly in possession of full faculties of his mind having a sensible approach to the problem posed before him write an epitaph that this is a case of gross negligence. No one can say that. There was no misconduct. We are not looking into adequacy or sufficiency of evidence. We are always conscious of the forbidden field. It is the function of the Tribunal to find whether the evidence was adequate or sufficient. We are taking the evidence as produced to be wholly correct at the initial stage and feel that there is no misconduct. Can we not say that under Art. 226 ? If writ can be issued to advance the cause of justice, then it is justice if we say that what is suggested as misconduct by any standards does not appear to be misconduct. It has to be a misconduct in law. In other words, it has to be a misconduct as understood in the Standing Orders and that Standing Orders refers to gross misconduct. If there was no misconduct, the adjective "gross" is futile. If there was no negligence, it could never be said to be gross negligence. It is purely bona fide and accidental error. Therefore, to start with there was no case justification not even a remote one for starting an inquiry.

19. We then turn to the order of the Labour Court before we take up some of the serious legal submissions made by Mr. Nanavati. We have already pointed out above the conclusions recorded by the Labour Court. We honestly feel that the Labour Court has completely missed the point and the order more or less reproduces the ipse dixit of the Labour Court. The Court took the misconduct as proved without ever first examining, as was contended, whether the facts alleged constitute misconduct. It observed that on misconduct being proved, the other thing namely punishment must follow as a matter of course. It was open to the Labour Court to look at the inquiry and come to the conclusion whether it is vitiated or not. Not one word is to be found in the whole order of the Labour Court as to whether the inquiry was held consistent with the provisions of the standing orders. The situation which prevailed with the Manager appear to have prevailed with the Labour Court also. Now if the misconduct was as alleged by the management, namely, gross misconduct, the punishment of dismissal would follow as a matter of course. Having held that misconduct is proved, it would mean that the Labour Court held that the petitioner was guilty of gross negligence in discharge of duty. The Court then observed there is no evidence to establish that the customer concerned was known to the workman which finding completely excludes any suggestion of any improper motive on the part of the workman. The Labour Court then observed that the workman has a clean record, a fact which the Manager had omitted to note. Then the Labour Court came to the conclusion that the value of 5 kg. of wheat would be Rs. 8.50 meaning thereby that it was a flee-bite on which no action should have been initiated. If a simple question was asked to the Manager as to what was the turnover of this employer's institution, probably this possible loss which had not occurred of Rs. 8.50 would have at least shown that it is a circumstances of innocuous character. The Labour Court then observed that the punishment of dismissal to a workman with clean record is too severe. Having so observed, the Labour Court converted the order of dismissal into an order of discharge. The Labour Court neither looked into Standing Orders Nos. 22 and 23. It neither looked into Standing Orders 25 where for this minor negligence warning or censure could have been given. What is the effect of failure to comply with cls. (4), (5) and (6) ? To say the least the Labour Court has practically approached the matter as if it was rubber stamping the domestic inquiry. From a Court of social justice we expect much better approach. It must realise that dismissal in the life of a workman aged more than 50 means denial of further opportunity to work and when it converted the order of dismissal into discharge, we do not understand what was in the mind of the Labour Court. The mental process of the Labour Court is difficult to reconstitute. A termination of service with an averment of proved misconduct would hardly help the petitioner even in getting gratuity provided he had put in that much length of service which would qualify for gratuity. After recording the finding of misconduct as proved, the conversion of dismissal into discharge is a paper formality devoid of any meaning. Its consequences are never appreciated. When he applies for service again no one is asking for a certified copy of the Judgment of the Labour Court. Section 11A was not introduced for this purpose. It was introduced to confer vital jurisdiction for misconduct, what is expected of the Labour Court is to first ascertain whether the finding is perverse and whether the inquiry was in consonance with the principles of natural justice as reproduced in the standing orders. None of the three steps is taken. The proof of the misconduct is taken for granted without examining the charge, the complaint, the subsequent foisting in of a cooked up witness Udesing and the non-observance of relevant provision of standing orders. The finding of the Labour Court to repeat is merely the ipse dixit of the Court having no relevance to record. Accordingly very little attempt was made by Mr. Nanavati to support the order. But a mere reading of it is sufficient to discard it as lacking in direction, methodology, requirements and dealing with the problem posed before it. Therefore, it is proper that this Court must interfere.