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2003 DIGILAW 40 (CAL)

MRINAL CHOWDHURY v. UNION OF INDIA

2003-02-03

PRANAB KUMAR CHATTOPADHYAY

body2003
PRANAB KUMAR CHATTOPADHYAY, J. ( 1 ) THESE two writ petitions were filed by the respective writ petitioners challenging the same award of the learned Tribunal, namely, the award dated February 27, 1997 passed by justice K. C. JAGADEB ROY as Presiding Officer of the learned Tribunal. Both the writ petitions were heard analogously and are disposed of by the following judgment. ( 2 ) BOTH the writ petitioners are the employees of United Bank of India and at the relevant point of time were posted in the head-office at Calcutta. The Chief Officer of the said bank issued charge-sheet to both the writ petitioners on March 10, 1983 alongwith another workman, namely Sri Sreedam Mondal who was employed as Daftary of the said bank at that time. Identical charges were levelled against all the three workmen in connection with the same incident. The article of charges mentioned against the writ petitioners are set out hereunder: a) Riotous/disorderly/indecent behaviour on the premises of the Bank; b) Attempt to cause damage to the property of the Bank; c) Wilful insubordination/disobedience of any unlawful and reasonable order of the management; d) Committed an act prejudicial to the interest of the Bank; e) Failing to show proper consideration, courtesy, etc. towards the Officers and unseemingly and unsatisfactory behaviour while on duty and f) Neglect to work. ( 3 ) THE disciplinary proceeding was conducted against the writ petitioners on the basis of the said charge-sheet and after submission of the enquiry report by the Enquiry officer, the disciplinary authority ultimately passed order of dismissal in respect of both the writ petitioners although in the case of the other employee, namely, Sri Sreedam Mondal the punishment imposed was withdrawal of special allowances for six years. ( 4 ) SINCE the appellate authority did not interfere with the punishment imposed by the disciplinary authority, an industrial dispute was raised against the said orders of dismissals and the Central Government in exercise of powers conferred upon by Section 10 (1) of the industrial Disputes Act, 1947 referred the dispute to the Central Government Industrial tribunal. ( 4 ) SINCE the appellate authority did not interfere with the punishment imposed by the disciplinary authority, an industrial dispute was raised against the said orders of dismissals and the Central Government in exercise of powers conferred upon by Section 10 (1) of the industrial Disputes Act, 1947 referred the dispute to the Central Government Industrial tribunal. ( 5 ) V By order No. L-12012/157/85-D. II (A)dated January 20, 1986 and corrigendum of even number dated June 10, 1986 the Central government in exercise of its powers under sections 10 (l) (d) and (2-A) of the Industrial disputes Act, 1947, referred the following dispute to the Central Government Industrial tribunal, Calcutta for adjudication: "whether the action of the management of united Bank of India, Head Office, Calcutta in imposing the punishment of dismissal of sri Manabendra Saikia, Head Cashier, maheshwar Jha, Driver and Mrinal chowdhury, Believing Sub-staff, withdrawal of special allowance in respect of Sreedam Mondal, Daftary and stoppage of annual increments of Sri Tapas Kumar banerjee, Clerk, Amit Roy Chowdhury, clerk, Ravindra N. Karmakar, Head cashier, Ashok Kumar Goel, Clerk, Shashi kant Chowdhury, Clerk, Indrajit Prasad, sub-staff Krishan Kumar, Sub-staff Paradip chakraborty, Cash Clerk, Rajendra Ojha, sub-staff and Sachin Roy, Armed Guard is justified and the management has not adopted any unfair labour practice? If not, to what relief the workmen concerned are entitled?" ( 6 ) IT appears from the records that out of 14 workmen, three workmen, namely, Sri manabendra Saikia, Sri Maheshwar Jha (Writ petitioner in W. P. No. 779 of 1998) and Sri mrinal Chowdhury (Writ petitioner in W. P. No. 778 of 1998) were dismissed from service. It also appears from the records that the parties agreed before the Tribunal earlier that there would be a split award i. e. a separate award for sri Manabendra Saikia whose case was espoused by United Bank of India Employees union and a separate award in respect of the rest of the workmen who were represented by the United Bank of India Shramik Karmachari samity. It was also agreed by the parties before the Tribunal that hearing in respect of Sri manabendra Saikia and that of in respect of the remaining 13 workmen would be held separately. It was also agreed by the parties before the Tribunal that hearing in respect of Sri manabendra Saikia and that of in respect of the remaining 13 workmen would be held separately. ( 7 ) THE case of Sri Manabendra Saikia was adjudicated first and award in respect of him was passed by the learned Tribunal presided over by Justice M. N. ROY (a former Judge of this Hon'ble Court ). The learned Tribunal, presided over by Justice M. N. ROY passed an award on February 24, 1993 and by invoking the power under Section 11-A of the Industrial disputes Act, 1947 directed that instead of dismissal a punishment of stoppage of two increments should be imposed on Sri manabendra Saikia. ( 8 ) SUBSEQUENTLY the learned Tribunal presided over by Justice K. C. JAGADEB ROY passed an award on February 27, 1997 which is subject matter of dispute in the present writ petitions. In the said award the learned Tribunal by invoking Section 11-A of the Industrial disputes Act, 1947 gave following directions in respect of the writ petitioners: "for the ends of justice, therefore, I award a lesser punishment in lieu of dismissal and direct that Sri Mrinal Chowdhury be reinstated to the service from the date this award comes into operation but without full back wages and only be entitled to two years back wages, whereas Sri Maheswar Jha be reinstated in service from the date of the enforcement of the Award without any full back wages but only with back wages for a single year as his gravity of the misconduct on his part is more than that of Sri Mrinal chowdhury. As a result, these two workmen only should suffer for the loss of wages and not the loss of service which no doubt give them enough sense to conduct themselves properly in future in their postings. " ( 9 ) THE main contention of the writ petitioners in these writ petitions is that the learned Tribunal committed a serious error of law by making a differential treatment in respect of the writ petitioners vis-a-vis, Sri manabendra Saikia. " ( 9 ) THE main contention of the writ petitioners in these writ petitions is that the learned Tribunal committed a serious error of law by making a differential treatment in respect of the writ petitioners vis-a-vis, Sri manabendra Saikia. ( 10 ) ALTHOUGH, the Union which represented the writ petitioners before the tribunal did not file the present writ petitions challenging the validity of the award but the petitioners herein being the aggrieved and affected parties filed the present writ petitions questioning the validity and/or legality of the award. ( 11 ) ADMITTEDLY, Sri Manabendra Saikia and both the writ petitioners herein were dismissed from service by the disciplinary authority after the completion of the disciplinary proceeding and the learned tribunal although set aside the order of dismissal in respect of all the aforesaid three employees but the learned Tribunal presided over by M. N. ROY, J. , imposed lesser punishment in lieu of dismissal in respect of Sri manabendra Saikia whereas Justice K. C. JAGADEB ROY, Presiding Officer of the learned tribunal imposed different punishment even after setting aside the order of dismissal in respect of both the writ petitioners herein which is admittedly more severe punishment as the benefit of full back wages were denied to the writ petitioners. ( 12 ) IN order to consider the issue relating to discrimination as raised by the writ petitioners herein regarding imposition of punishment by the learned Tribunal, it is now necessary to consider the charges which were actually levelled against Sri Manabendra saikia. The charges levelled against Sri manabendra Saikia are set out hereunder: "you by your aforesaid acts have committed the following gross and minor misconducts under clauses 19. 5 and 19. 6 respectively of the Tripartite settlement dated October 19. i) Riotous/disorderly/indecent behaviour on the premises of the bank. (Gross misconduct ). ii) Failing to show proper consideration, courtesy or attention towards superior officers of the bank and unseemingly or unsatisfactorily behaviour while on duty (Minor misconduct ). iii) Doing an act prejudicial to the interest of the bank (Gross misconduct)additionally. iv) Assaulting your superior officer on the premises of the bank during office hours. (Gross misconduct ). ii) Failing to show proper consideration, courtesy or attention towards superior officers of the bank and unseemingly or unsatisfactorily behaviour while on duty (Minor misconduct ). iii) Doing an act prejudicial to the interest of the bank (Gross misconduct)additionally. iv) Assaulting your superior officer on the premises of the bank during office hours. " ( 13 ) ANALYSING the charges levelled against both the writ petitioners herein and Sri manabendra Saikia it appears that more serious charge of assaulting superior officers inside the bank premises during office hours was levelled against Sri Manabendra Saikia and the disciplinary authority also imposed the penalty of dismissal in respect of Sri Manabendra saikia. Learned Tribunal presided over by justice M. N. ROY while dealing with the case of Sri Manabendra Saikia invoked power under section 11-A of the Industrial Disputes Act and instead of the penalty of dismissal from service a lesser punishment of stoppage of two increments was awarded. In respect of these two writ petitioners, learned Tribunal presided over by Justice K. C. JAGADEB ROY although invoked Section 11-A of the Industrial Disputes act and imposed lesser punishment in lieu of dismissal from service but refused to grant identical relief as was granted by Justice M. N. ROY as Presiding Officer of the learned tribunal in case of Sri Manabendra Saikia. ( 14 ) ADMITTEDLY, Justice K. C. JAGADEB roy in the case of the writ petitioners even after setting aside the order of dismissal imposed more severe punishment in respect of the petitioners herein than that of Sri Manabendra saikia as in the case of the writ petitioners the learned Tribunal refused to extend the benefit of full back wages inspite of directing their re-instatement in service. In case of Sri maheswar Jha (writ petitioner in W. P. No. 779 of 1998) learned Tribunal directed re-instatement with back wages for a single year and in case of Sri Mrinal Chowdhury (writ petitioner in W. P. No. 778 of 1998)re-instatement was allowed with two years back wages only. In case of Sri maheswar Jha (writ petitioner in W. P. No. 779 of 1998) learned Tribunal directed re-instatement with back wages for a single year and in case of Sri Mrinal Chowdhury (writ petitioner in W. P. No. 778 of 1998)re-instatement was allowed with two years back wages only. ( 15 ) THE case of Sri Manabendra Saikia was decided by the learned Tribunal admittedly on February 24, 1993 and as such while deciding the case of each one of the writ petitioners herein in the year 1997 Justice K. G. JAGADEB ROY, learned Presiding Officer of the tribunal had the opportunity to consider the award passed by Justice M. N. ROY specially when he was deciding the fate of the employees of the same establishment who faced identical charges and also suffered the identical punishment of dismissal from service. ( 16 ) I fail to understand why Justice K. C. JAGADEB ROY while dealing with the case of the writ petitioners herein refused to grant identical relief even though the said Presiding Officer of the learned Tribunal had the opportunity to go through the reasoned award passed by his predecessor in office and a former Judge of this hon'ble Court. ( 17 ) CONSIDERING the materials on record and particularly analysing the impugned award passed by Justice K. C. JAGADEB ROY, Presiding officer of the learned Tribunal, I do not find any justification in treating the present writ petitioners differently as the Presiding Officer of the learned Tribunal failed to point out why the different treatment was necessary in respect of the writ petitioners herein. ( 18 ) LEARNED counsel appearing on behalf of the respondents also could not satisfactorily explain the distinguishing features which warranted different treatment for the writ petitioners herein. Accordingly, I have no hesitation to hold that the petitioners herein should have been treated in an identical manner with Sri Manabendra Saikia by the learned tribunal. ( 19 ) IN the facts of the present case, the respondents have miserably failed to demonstrate before this Court why the petitioners should not have been granted similar relief like Sri Manabendra Saikia. After thoroughly analysing the charge-sheets issued to the writ petitioners and also to Sri manabendra Saikia and scrutinising the impugned award of the learned Tribunal, it does not appear why more severe punishment should be inflicted on the petitioners herein. ( 20 ) MR. After thoroughly analysing the charge-sheets issued to the writ petitioners and also to Sri manabendra Saikia and scrutinising the impugned award of the learned Tribunal, it does not appear why more severe punishment should be inflicted on the petitioners herein. ( 20 ) MR. Kalyan Bandopadhyay, learned counsel of the petitioners referred to and relied upon the following decisions in support of his arguments: 1) Sengara Singh v. State of Punjab 1983 (4) SCC 225 : 1984-I-LLJ-161. 2) E. S. Reddi v. Chief Secretary to government of Andhra Pradesh, hyderabad 1986 Lab I. C. 704 3)A. P. S. R. T. C. , Cuddapahv. K. Bajjanna air 2002 SCW 2756 ( 21 ) THE aforesaid decisions are very much applicable in the facts of the present case as I have already observed that the petitioners herein have suffered discriminatory treatment without any reasonable basis. ( 22 ) MR. R. N. Majumdar, learned counsel of the respondent Bank referred to and relied upon the decision of the Hon'ble Supreme court reported in P. G. I. of Medical Education and Research, Chandigarh v. Rajkumar200l (2)scc 54 : 2001-I-LLJ-546 and submitted that there is no strait-jacket formula regarding payment of back wages and the same has to be dealt with in the facts and circumstances of each case. ( 23 ) MR. Majumdar also referred to another decision of the Hon'ble Supreme Court in Syed Yakoob v. K. S. Radhakrishnan and Ors. AIR 1964 SC 477 and submitted that an error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact. ( 24 ) IN my opinion the aforesaid decision is of no help to the respondent Bank. In the present case, by imposing different punishment without following the earlier decision of the same Tribunal while dealing with identical issue, the learned Presiding Officer of the tribunal clearly violated the provision of article 14 of the Constitution of India and thus, committed an error in law which calls for interference by this Court. ( 25 ) FOR the reasons stated hereinabove, I am unable to uphold the impugned award passed by the learned Tribunal on February 27, 1997. ( 25 ) FOR the reasons stated hereinabove, I am unable to uphold the impugned award passed by the learned Tribunal on February 27, 1997. I modify the said award by setting aside the order of punishment and substituting the same with the punishment inflicted in the case of Sri Manabendra Saikia by the learned tribunal in the award dated February 24, 1993. ( 26 ) IN view of the aforesaid modification of the order of punishment, the respondent bank shall determine the financial benefits as would be available and will make payments thereof to the writ petitioners within three months from the date of communication of this order. ( 27 ) IN the aforesaid circumstances, both the writ petitions stand allowed. ( 28 ) THERE will be, however, no order as to costs. ( 29 ) THE parties are directed to act on the basis of the operative portion of the signed copy of the minutes of this order on the usual undertaking.