V. P. MOHAN KUMAR, J. ( 1 ) THE petitioner impugns Annexure-D award passed by the 1st respondent. The question raised in this writ petition lies in a narrow sphere: ( 2 ) THE petitioner, a Beedi manufacturing contractor, had employed one Sri Nagesh Baliga and Sri A. Damodar. Sri nagesh Baliga was the clerk-in-charge of the Channapatna depot and it was noticed that as many as 3847 logbooks in his custody in the depot were damaged by white ants, A memo was issued on 12-6-1980 to Sri Nagesh Baliga who was in-charge of the Depot to show cause why the cost of the books should not be recovered from him. As his explanation was not satisfactory an enquiry was conducted. The Enquiry Officer after proper enquiry submitted a report finding the employee guilty of the charges framed against him. The management imposed the punishment of reversion of Sri Baliga to the post clerk. ( 3 ) SRI A. Damodar, another employee along with certain other workers illegally prevented the movement of goods on 18-4-1980. As his explanation to the memo served was not satisfactory, charges were framed and an enquiry was conducted. The enquiry Officer found the worker guilty and the employer imposed the punishment of suspension for three days and stoppage of his annual increment for 1980-81. ( 4 ) THE Union, the 2nd respondent herein raised a dispute which was referred by the Government for adjudication by the 1st respondent as Reference No. 63 of 1986. By Annexure-D award the 1st respondent accepted the reference and held that the management is not entitled to impose the punishment. The tribunal had held that the domestic enquiry held is fair and proper. The contention urged by the worker mainly was that the management had no power to impose the punishment as in the nature imposed. This contention has been found favour with the tribunal. The Tribunal stated in this behalf as follows:". . . . It is noticed that the II party has not paid wages for 3 days with effect from 20th to 22nd August 1980 to the workman Sri A. Damodar and also withheld his increments for the year 1980-81. This contention has been found favour with the tribunal. The Tribunal stated in this behalf as follows:". . . . It is noticed that the II party has not paid wages for 3 days with effect from 20th to 22nd August 1980 to the workman Sri A. Damodar and also withheld his increments for the year 1980-81. With regard to the workman Sri nagesh Baliga he has been reverted from the post of clerk-in-charge to post of clerk with effect from 1-11-1980 by way of punishment and on the ground of proved misconducts of negligence, etc. There are no standing orders or rules governing the conditions of service and the procedure for enquiry into such misconduct and the penalties to be imposed thereon. There is also no evidence of any contract indicating the power of the management to stop payment of wages, and to withhold the increment and to revert his employees on charges of misconduct. In the absence of any such provisions or rules or any contract the action of the management is without any authority and is illegal. Further, in the absence of any such specific rules or provision in any contract governing the conditions of service of the workmen in the II party, the power to stop payment of wages and withhold increments and also the power to revert an employee, cannot be inferred by implication. The contention that the obligation to make payment and the power to grant increment and promotion, postulates or carries with it, a power to stop payment of wages and to withhold increments and to revert an employee on charges of misconduct, cannot therefore be sustained in law". On this view the Tribunal held that the management acted without authority and illegally and the order of punishment was held liable to set-aside. On this view the Tribunal held that the management acted without authority and illegally and the order of punishment was held liable to set-aside. It therefore directed as follows:"in the result and for the foregoing reasons an award is passed and it is held that the IInd Party Management was not justified in ordering non-payment of wages for 3 days from 20th to 22nd August 1980 and also in withholding increment for the year 1980-81 in respect of the workman sri A. Damodar and in reverting workman Sri Nagesh baliga from the post of clerk-in-charge to the post of clerk with effect from 1-11-1980 and it is illegal and the IInd party Management is directed to pay the wages for 3 days and also sanction increment and in respect of the workman sri A. Damodar and restore workman Sri Nagesh Baliga to his original post of clerk-in-charge. The 1st Party workmen are entitled to all other consequential benefits". The employer has challenged the award produced as Annexure-D, ( 5 ) THE finding that the workers are guilty of the charges framed against them though seriously disputed by Sri M. C. Narasimhan, learned Counsel for the 2nd respondent, has to be accepted as no materials have been brought to my notice to differ from the finding entered by the Tribunal. It is proved that as many as 3847 log books which are documents of the employer were lost from the custody of Sri Nagesh Baliga. He was in-charge of the depot where it was kept, and it was his duty to preserve the same. He cannot wash off his hands by stating that it was eaten by white ants. He was bound to take such steps as to prevent such losses. It is also established that Sri A. Damodar had offered physical obstruction on 18-4-1980, for the movement of vehicles carrying goods. He being an employee has committed a clear illegal act of offering wrong obstruction to the employer. These charges have been proved at the domestic enquiry held, which has been clearly shown to have been held properly and fairly. ( 6 ) NOW, the only question that arises for consideration is the competency of the employer to impose the particular punishment. While considering the question, it is to be noted that similar contention was considered by this Court in kantharaj v B. E. L. . ( 6 ) NOW, the only question that arises for consideration is the competency of the employer to impose the particular punishment. While considering the question, it is to be noted that similar contention was considered by this Court in kantharaj v B. E. L. . This contention was met by this Court by stating thus:". . . . The Counsel for the petitioner contended that the punishments are enumerated in the standing orders and that the reduction of five stages in the basic pay is not one of the punishments enumerated in the standing orders and hence it cannot stand. One of the punishments enumerated in the standing order is one of dismissal. It is well settled that higher always includes the lower. A learned Judge of this Court in Writ Petition No. 12467 of 1985 has considered an identical question and by judgment dated 15-9-1993 overruled the contention and held that" "the next contention that the penalty imposed is beyond the scope of the standing orders as the same is not enumerated therein, cannot also be accepted for the reason that the higher includes the lower. It is not the case of the petitioner that the alleged act of misconduct is not enumerated in the standing order". I am in respectful agreement with the view expressed above by the learned Single Judge of this Court. Annexure-L order itself shows that the charges proved against the petitioner are grave and that the punishment warranted is that of dismissal from service. But, taking a lenient view of the matter it was ordered that the basic pay by five stages be reduced. Certainly the punishment awarded is lower to the one that is provided for in the standing orders which cannot be said to be illegal. In that view of the matter there is no merit in the contention raised by the petitioner". (emphasis supplied) in this case, Sri Nagesh Baliga was reduced in rank from that of post clerk-in-charge of the depot to that of clerk. Sri A. Damodar was suspended for a period of three days and his increment for the year 1980-81 was withheld. The charges have been proved and the domestic enquiry is valid as well. The employer could have imposed the punishment of dismissal from service. As to whether it is proportionate to the gravity of the charges is a different matter. Sri A. Damodar was suspended for a period of three days and his increment for the year 1980-81 was withheld. The charges have been proved and the domestic enquiry is valid as well. The employer could have imposed the punishment of dismissal from service. As to whether it is proportionate to the gravity of the charges is a different matter. Nevertheless it cannot be gainsaid that these punishments that are imposed are lesser punishment than the said larger punishment of dismissal from service. If so, following the principle laid down in the above case, it has to be held that the management is competent to impose these lesser punish- ments in the place of larger punishment. ( 7 ) SOMEWHAT similar question arose before Andhra Pradesh High Court while considering the expression lesser punishment' in Section 11-A of the Industrial Disputes Act. Justice ramaswamy (as he then was) stated in The District Manager, a. P. S. R. T. C. , Kukatpalli Bus Depot, Hyderabad v Labour Court, hyderabad and Another , as follows:". . . . THOUGH Sri Ananda Rao has contended that the punishment by way of reinstatement is not one of the modes of punishment contemplated under Regulation 9 of the CCC Regulations, I am unable to agree with the learned counsel. A Division Bench decision of this Court in the, District Manager, Andhra Pradesh State Road transport Corporation, Jaggaiahpet v Labour Court, guntur and Another, held that though the regulations do not provide for the withholding of back-wages as one of the penalties which can be awarded by the management to the employee, it is open to the Labour Court to impose such a penalty in appropriate cases. The Award of an industrial tribunal directing reinstatement of an employee without back-wages and without any other kind of punishment specified in the regulations of the management is not bad merely because the employee was found guilty of misconduct. If in the opinion of the Tribunal the misconduct is not so grave as to warrant the award of the extreme penalty of discharge or dismissal. The term lesser punishment' in the section cannot be restricted by reading words which are not contained in the section. The section does not state that the lesser punishment should be one which is provided in the regulations or standing orders of the management. The term lesser punishment' in the section cannot be restricted by reading words which are not contained in the section. The section does not state that the lesser punishment should be one which is provided in the regulations or standing orders of the management. The provision takes in its sweep all punishments lesser than discharge or dismissal, whether provided for in the regulations or standing orders of the managements or not". If the employer had imposed a larger punishment of dismissal from service, then invoking the power under Section 11-A of the industrial Disputes Act, 1947 the Tribunal could have awarded a lesser punishment. The Tribunal, in essence is exercising the powers of the employer. If so, there is no legal prohibition in the employer himself exercising the said power at the first instance. In the light of what is stated above, I am of the view that the labour Court erred in interfering with the punishment imposed by the employer on the worker. ( 8 ) SRI Narasimhan, learned Counsel, contended relying on the decision of the Supreme Court in Mis, Glaxo Laboratories (I) ltd. v Presiding Officer, Labour Court, Meerut and Others and a. L. Kalra v The Project and Equipment Corporation of India ltd. , that "where misconduct when proved entails penal consequences it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of an incident may not be camouflaged as misconduct". In a given case, if the set of facts alleged to find misconduct is peculiar to the industry or the employer, then the employee should be told in advance that the omission or commission thereof would amount to a misconduct. But, the employee commits an offence punishable as an offence under the indian Penal Code or some other penal legislation on complaint by the injured, merely because it is committed within the industrial undertaking or in connection with his discharge of duties qua industrial undertaking, will it cease to be an offence? the answer to question would be in the negative. There is no definition of 'misconduct' in the Industrial Disputes Act, 1947 or in the Industrial Employment (Standing Orders) Act, 1946. Misconduct literally means wrong or improper conduct. It means intentional wrongdoing. It would include unlawful behaviour. A conduct which is blameworthy would be misconduct. the answer to question would be in the negative. There is no definition of 'misconduct' in the Industrial Disputes Act, 1947 or in the Industrial Employment (Standing Orders) Act, 1946. Misconduct literally means wrong or improper conduct. It means intentional wrongdoing. It would include unlawful behaviour. A conduct which is blameworthy would be misconduct. If by the commission or omission of the acts of the employee, the employer suffers loss or it generates an atmosphere destructive of discipline, the same is misconduct. As stated by the Supreme court in Agnani W. M. v Badri Das and Others, thus:". . . . It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehaviour committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some case, constitutes misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case, it may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees' conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with commonsense". There will be several acts of the employee which will expose him to penal consequence. These acts would no doubt be a misconduct in industrial parlour. In such cases the employer is free to decide reasonably what action should be taken in that matter. There will be several acts of the employee which will expose him to penal consequence. These acts would no doubt be a misconduct in industrial parlour. In such cases the employer is free to decide reasonably what action should be taken in that matter. On an analysis of the decision of this aspect, it can be safely concluded that any act of an employee which would constitute an offence with penal consequence under the Indian Penal Code or such other analogous legislations is a misconduct. Broadly stated all offences with penal consequences are misconducts but not every misconduct an offence. We may state that the Supreme court in A. L. Kalra's case, supra, was considering the later class of cases. In such cases, where the facts leading to the misconduct attributed to the worker do not constitute an offence it is obligatory on the employer to specify and to define it with precision what would amount a misconduct. But the conduct, which will attract penal consequence and will expose the employee to be proceeded against either under the Indian Penal code or such other analogous penal legislation are misconduct even if the employee has not been told in advance that these acts according to the employer would amount to 'misconduct'. ( 9 ) SRI Nagesh Baliga has by his act caused wrongful loss to the employer by the destruction of 3827 logbooks in his custody and thereby has exposed himself as liable to be punished under section 426, Indian Penal Code. Likewise, Sri A. Damodar by obstructing the movement of the goods and persons has committed the offences punishable under Sections 341 and 342, indian Penal Code. In such circumstances these acts and omission which constitute misconduct. ( 10 ) SRI Narasimhan, learned Counsel, also cited several authorities to contend that if two views are possible on an issue, the view taken by the primary authority should be sustained and this Court should not interfere in such matter (Vide in workmen of Dodsal Put. Ltd. v Dodsal Put. Ltd. and Another and Harish Chander Nigam v State of Uttar Pradesh and others ). I am of the view that the said principle cannot be applied to the instant case. Ltd. v Dodsal Put. Ltd. and Another and Harish Chander Nigam v State of Uttar Pradesh and others ). I am of the view that the said principle cannot be applied to the instant case. The Tribunal has not taken a view on the facts of the case after the evaluation of the evidence in the case, and the Court is not being called upon to decide the factual issues. The Tribunal has accepted the reference on the basis of a point of law. This Court is called upon to test the correctness of the legal aspect. As such this Court is entitled to decide the question and is free to take a different view. The decision cited do not place any restriction on the Court in exercising the said power. ( 11 ) IN the result, this writ petition is allowed. I quash Annexure-D order. Rule made absolute. No cost. --- *** --- .