JUDGMENT - R.J. KOCHAR, J.:---The Bombay Municipal Corporation is anxious to get the impugned Award dated 16-7-1992 passed by the 5th Labour Court at Bombay quashed and set aside for the sake of principles. It is an admitted position by both the learned Counsel that the concerned respondent employee having reached the age of superannuation was not entitled to be reinstated in service but was entitled to back wages and all other consequential benefits arising from the impugned Award. It is also an admitted position that the petitioners have paid the respondent employee all whatever was due to him including back-wages etc. The petitioners have lost on facts by wrong application of judgment of Division Bench of this Court. They want the law to be set right as they are facing similar situation qua other employees, similarly placed. Shri Walawalkar, the learned Counsel for the petitioners has pointed out that having lost at all the interim stages the petitioners have paid all the back-wages and other dues to the respondent employee and that the petitioners have no intention to recover or claim back the same even if they succeed in this petition. 2.The facts which have given rise to the petition are as follows- The respondent employee was employed by the petitioners as Laboratory Technician in the B.Y.L. Nair Hospital of the Corporation. It is the case of the petitioners that by virtue of his being a Municipal servant he was allotted Municipal tenement from 16-10-1950 for his use and occupation along with his family members. According to the petitioners, he acquired private accommodation in his wife's name in the year 1969 and he shifted from the said Municipal tenement and started staying in the private accommodation. He, however, did not vacate the said Municipal tenement but sublet it to one Shri A.V. Acharya, who also happened to be a Laboratory Technician in the said Hospital from 1969. It is also a fact that the wife of the said Acharya was also employed as a Teacher in the Education Department. It appears that it was detected by the Municipal Office that the respondent has sublet the Municipal premises to the said Acharya couple, both also the Municipal employees and that he was profiteering therefrom by charging higher rent or compensation. It appears that it was detected by the Municipal Office that the respondent has sublet the Municipal premises to the said Acharya couple, both also the Municipal employees and that he was profiteering therefrom by charging higher rent or compensation. By a charge-sheet dated 14-10-1977 it was alleged against him that he had committed an act of misconduct by subletting the Municipal premises to Shri and Smt. Acharya. It appears that, as a result of a departmental enquiry against the respondent, he was removed from the Municipal service w.e.f. 21-11-1979. I am not mentioning what transpired or happened with the respondent and his sub-tenant as it is not relevant for the present petition. The respondent was aggrieved by the said Order of removal from service and therefore he approached the State Government by raising an industrial dispute against the petitioners. He prayed for reinstatement with full back wages and continuity of service. The said industrial dispute was referred for adjudication to the Labour Court, Mumbai. Both the parties filed their pleadings and documents and also adduced their oral evidence on the issue of fairness and validity of the enquiry. The Labour Court by its Part-I Award dated 12-3-1984 held that the enquiry held by the petitioners was fair, legal and proper and directed both the parties to adduce evidence on the point of perversity of findings and the propriety of the order of punishment. By his Part-II Award dated 16-7-1991 the Labour Court framed the points for determination in respect of the findings of the enquiry and the question of punishment being justified or not. At this stage none of the parties adduced any oral evidence. The Labour Court, therefore, decided the aforesaid points on the basis of the material on record. The Labour Court has categorically found that the findings of the Enquiry Officer were based on evidence and material on record and that the conclusion of the Enquiry Officer that the misconduct of sub-letting the Municipal premises was proved was based on the said material on record. The Labour Court however has held that since the charge-sheet did not mention that the respondent workman had committed any act of dishonesty in connection with the employers property or business under Standing Orders 24(d) no misconduct alleged against the respondent was proved. The Labour Court however has held that since the charge-sheet did not mention that the respondent workman had committed any act of dishonesty in connection with the employers property or business under Standing Orders 24(d) no misconduct alleged against the respondent was proved. It was observed by the Labour Court that an act of subletting the Municipal premises is not a misconduct under the Standing Orders and hence the petitioners as employers could not inflict the punishment of dismissal or removal on the respondent. The Labour Court has finally concluded that the dismissal order was illegal and unjustified and therefore, he awarded reinstatement with full back wages to the respondent employee. Since, however, the employee had already reached the age of superannuation no reinstatement could be granted. He was held to be entitled to full back wages from 22-11-1979 till the date of his superannuation. Following the judgment of a Division Bench of this Court reported in 1991(2) Bom.C.R. 353 between (Municipal Corporation of Greater Bombay v. Laxman Saidu)1, the Labour Court held that subletting of Municipal premises was not a misconduct under the Model Standing Orders. The Labour Court also followed an earlier judgment of the Division Bench of this Court reported in 1985 Mh.L.J. 405 between (Nandita B. Palekar v. Y.S. Kasbekar others)2 wherein the Court held that the sub-letting of the Housing Board's premises was not a misconduct and breach of discipline though it could be in breach of an undertaking or rules of allotment under which the premises was allotted to the allottee. Under the aforesaid circumstances the Labour Court held that the respondent employee was not guilty of any misconduct as sub-letting the premises did not amount to a misconduct under the Model Standing Orders or Municipal Service Regulations. 3.It was the contention of Mrs. Mhatre, the learned Counsel for the respondent employee that the Municipal premises which was allotted to the respondent was on rental basis as a Municipal tenant and the same was not given to him as Municipal service quarters. She further pointed out that the respondent was paying rent to the petitioners as a tenant of the premises. It was her contention in the circumstances pleaded by the employee that he was a Municipal tenant and therefore he has not committed any act of misconduct by sub-letting the premises to another Municipal employee. She further pointed out that the respondent was paying rent to the petitioners as a tenant of the premises. It was her contention in the circumstances pleaded by the employee that he was a Municipal tenant and therefore he has not committed any act of misconduct by sub-letting the premises to another Municipal employee. 4.The first question which requires to be answered would be whether the respondent was guilty of violation of any other rules/regulations framed under the Municipal Corporation Act by the Municipal Commissioner in exercise of his powers under section 64 of the Act in case it is established that the respondent was holding the Municipal premises as his service quarters ? This question arises as a sequeter of the broad and random findings recorded by the Labour Court that the act of sub-letting of the Municipal premises by the Municipal servant did not amount to any misconduct under the Model Standing Orders. According to me, the Standing Orders not being exhaustive such an act on the part of the servant can be safely treated as an act of dishonesty in connection with the employers property as contemplated under Clauses 24(d)(1) or 22(d)(1) of the Model Standing Orders. What is enumerated under the Standing Orders is broadly the captions or general heads as collective nomenclature of various acts under generalised rubric which could reasonably fall under it or under its broad shadow. The Labour Court has, however, missed crucial distinctive aspects of the issue as to whether the Municipal premises are service quarters or tenancy premises ? 5.If a Municipal servant is allotted any Municipal premises/tenement for his and his family's occupation as service quarter as a part of his service conditions, rent-free or for nominal/concessional rent/compensation during his service, and if he himself does not occupy but sub-lets the same to another person, I fail to understand how such an act committed by him would not amount to a misconduct either under the Municipal Service Regulations or the Model Standing Orders 22(d) and 22(1) for clerks or 24(d) and (1) for workman respectively, framed under the Industrial Employment (Standing Orders) Act, 1946. Such an act of his would definitely be "dishonesty in connection with the employer's property" and also "an act subversive of discipline". It is needless to mention why the employees of any establishment are provided service quarters during their employment. Such an act of his would definitely be "dishonesty in connection with the employer's property" and also "an act subversive of discipline". It is needless to mention why the employees of any establishment are provided service quarters during their employment. Its sole purpose is to remove hardship to such employees who are not in a position to have their own premises and to make them and their families tension free and worriless at least during the service period. It is a welfare measure taken by the good employers for their needy employees. By not occupying the service premises themselves and by sub-letting the same to others, they are cheating their employers and also depriving other needy employees who are in queue awaiting their turn be get roof over their head. I have no manner of doubt that such an act of sub-letting the service quarters by the original allottees amounts to a misconduct as discussed above. And the Municipal Authority or the employers have powers to initiate disciplinary proceedings against the delinquent servants to punish them suitably bearing in mind all the facts and circumstances and gravity of a situation. There need not be any other specific rule/regulation or standing order making sub-letting of service quarters as a punishable misconduct. However, it would be better to keep the servants on their guard to have such a specific rule/regulation/standing order prohibiting subletting of the service quarters or accommodating any stranger in the premises without due authorisation or permission by the appropriate authority. By framing such a specific rule the charge of vagueness of misconduct would also be avoided. 6.In the present case the petitioners---B.M.C. have failed to establish the foundational facts that the respondent was allotted the premises occupied by him as his "service quarters". The respondent has denied through out that those were the service quarters given to him for his service. He has maintained that the premises was given to him on rental basis and he has been paying rent and the B.M.C. has been accepting the same. The least the B.M.C. could have produced is the allotment letter of the service premises and/or agreement in that respect. It is therefore not possible for me to hold that the respondent by subletting the Municipal premises has committed any misconduct contemplated under the Model Standing Orders. The least the B.M.C. could have produced is the allotment letter of the service premises and/or agreement in that respect. It is therefore not possible for me to hold that the respondent by subletting the Municipal premises has committed any misconduct contemplated under the Model Standing Orders. Unless and until the foundational fact of the premises being the service quarters is proved it is not open to the employer to punish him for his alleged act of subletting the premises in breach of the terms of service/employment contract. In the present case it would however certainly be open to the B.M.C. Authority as the landlords of the premises to initiate any other appropriate proceedings for eviction, including the one under section 105-B of the B.M.C. Act, 1888. 7.In the facts and circumstances of our case the ratio of the judgment of our High Court Nandita Palekar v. Y.S. Kasbekar, 1985 Mh.L.J. 405(Bom.) would certainly apply. It is clear from the following observations that the facts on which the said judgment is based are not different from the facts in our case. In both the cases the tenements are not the "service quarters" allotted to them by their respective employers. Both have claimed to be the tenants of their respective employers. "4. The tenements, one of which was allotted to the appellant, were admittedly constructed under the Low Income Group Housing Scheme and could be allotted to any of the applicants eligible under the Rules irrespective of whether they were employees of the Board or not. In other words, the allotment was not restricted to the employees of the Board. In pursuance of the allotment, the allottees were put in possession of the tenements on payment of the prescribed amount and upon executing a hire purchase agreement agreeing to be bound by the rules governing the scheme and the terms of the agreement entered into between the allottees and the Board. The agreement and the rules merely stipulate that upon breach of the terms the allotment was liable to be cancelled and the allottee evicted from the tenement. No other consequence of the breach of the condition of the allotment is laid down by the rules or agreed to between the parties. Upon breach of the terms of the agreement, no proceedings criminal or disciplinary are envisaged against the allottee of the tenement either under the agreement or the said scheme. No other consequence of the breach of the condition of the allotment is laid down by the rules or agreed to between the parties. Upon breach of the terms of the agreement, no proceedings criminal or disciplinary are envisaged against the allottee of the tenement either under the agreement or the said scheme. If any allottee other than an employee of the Board were to commit a breach of the agreement such as a now alleged against the appellant, the Board could not have taken any action except cancelling the allotment and seeking eviction of the allottee from the tenement. Merely because the appellant happens to be an employee of the Board, she cannot be visited with any further civil consequences. For a variety of reasons, a person may not be able to fulfil the terms of the agreement. Although the allottee may have undertaken to pay the installments of the hire purchase amount due under the agreement, he may not able to honour that agreements; should such a person be exposed to disciplinary action when there is no specific rule of conduct to that effect ? What would have been the position if the tenements were allotted exclusively to the employees of the Board under a scheme specially formulated for its employees and the scheme itself laid down that breach of any condition of such allotment would constitute breach of discipline, it is not for us to consider in this case. Admittedly there is no specific rule of conduct or discipline rendering the breach of such agreement misconduct. The obligations arising under the said scheme are purely contractual. A breach of contract even if deliberate cannot, in the circumstances referred to above be deemed to be a breach of discipline so as to warrant initiation of disciplinary proceedings against the employees of the Board. We are however clear in our mind that in the absence of any such specific stipulation or rule, no greater liability could be imposed upon the employees than what could be imposed on other employees who are not the employees of the Board. Imposition of any such additional liability on the employees of the Board would be unreasonable. We are however clear in our mind that in the absence of any such specific stipulation or rule, no greater liability could be imposed upon the employees than what could be imposed on other employees who are not the employees of the Board. Imposition of any such additional liability on the employees of the Board would be unreasonable. Even though the employees of the Board may form a class by themselves, in the absence of a specific rule or stipulation to that effect, upon contravening the terms of the said agreement no disciplinary proceeding could be taken for it is not breach of discipline but breach of contract. 5. When the reversion of an employee is by way of punishment it must be for breach of discipline or misconduct. The impugned reversion is for contravention of the conditions of allotment of a tenement. The allotment of tenement in favour of the appellant is not in the course of the employment or by virtue of the employment; it is made in her favour as in favour of any other member of the public. Any contravention of the conditions of such allotment is outside the scope of the appellant's employment and also not related to any question of discipline. Such contravention cannot be a ground for taking any disciplinary proceedings against her." 8.In our case admittedly the respondent was allotted the Municipal premises as a Municipal servant and not as a member of public but as a Municipal tenant. Had the B.M.C. been able to prove the fact that the respondent was allotted the Municipal premises as service quarters as a part of his service conditions, in that case, his act of sub-letting the premises would have certainly attracted the disciplinary proceedings culminating into punishment under the Model Standing Orders and/or Service Regulations framed by the Corporation for his act of misconducts of dishonesty in connection with the Corporation's property i.e. the service quarters and also act subversive of discipline. In the present case however, the petitioners have not been able to produce even before me any documentary evidence to establish that the respondent was allotted the Municipal premises as his service quarters and not as a Municipal tenant. Shri Walawalkar in his usual fairness candidly admitted that there was no such document retained or maintained in the record of the petitioners. Shri Walawalkar in his usual fairness candidly admitted that there was no such document retained or maintained in the record of the petitioners. There was no such agreement or allotment order and there was no evidence to show that the premises was allotted to the respondent at service quarters. In the absence of any documentary evidence it is difficult to hold in favour of the petitioners that the respondent was holding the Municipal premises at service quarters and not on rental basis. The primary document could be the allotment order in favour of the respondent but such a crucial document is not available at all. The conclusion therefore is inescapable that the respondent was holding the Municipal premises as a monthly tenant and not as a Municipal servant. Consequently it would be clear that if the respondent had breached the terms of any legal provision as a Municipal tenant or violation of the rules of tenancy it would be open to the petitioners to resort to any such action permissible to them under the Municipal Corporation Act, 1888. The petitioners could not have resorted to any disciplinary proceedings against the respondent employee for the alleged act of sub-letting by him of the Municipal premises. 9.There are no separate rules or regulations produced before me to indict the respondent for violation thereof either for service quarters or for tenancy as a Municipal servant. It would be better for the petitioners to frame such rules and regulations in respect of Municipal service quarters to be allotted to the Municipal servants. It would be unjust and improper for a Municipal servant to sub-let the Municipal service quarters to outsiders when there are other Municipal servants who are knocking the doors of the Municipal Corporation for allotment of service quarters. To control and check such rampat practice of unauthorised sub-letting of the Municipal service quarters it would be advisable for the petitioners to frame such rules and regulations in the interest of its own administration and also the Municipal servants. 10.In view of the above discussion and subject to the observations made by me the petition is dismissed with no orders as to costs. Rule is discharged. Issuance of a certified copy of this judgment and order is expedited. Petition dismissed. -----