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Himachal Pradesh High Court · body

2016 DIGILAW 851 (HP)

Sandeep Sharma v. Punjab National Bank

2016-05-19

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. (Oral) : This petition has been filed praying for the following reliefs: “(i) That the impugned orders imposing the penalty of dismissal to the petitioner vide Annexure P-D and PE respectively may kindly be quashed and set-aside. (ii) That petitioner be reinstated against the post of Computer Terminal Officer with the respondent-Bank with all consequential benefits like seniority and back wages etc. (iii) That the costs of this writ petition may kindly be awarded in favour of the petitioner. (iv) That the entire record pertaining to the case particularly the record of departmental inquiry may kindly be summoned for the kind perusal of this Hon’ble Court. (v) Any other order which this Hon’ble Court deems fit and proper in the facts and circumstances of the case may also be passed in favour of the applicant.” 2. As per the case put forth by the petitioner, he was serving in the respondent-Bank as Computer Terminal Officer, Mehre Branch, District Kangra when charge sheet dated 27.11.2006 was served upon him by the disciplinary authority in which ten charges of gross misconduct were leveled against him. 3. In brief, the said charges were as under: Charge No. 1: This charge was to the effect that on 02.03.2006, the petitioner had prepared debit/credit vouchers for Rs.3000/- and debited D/L account (pension) of one Sh. Daya Ram with a sum of Rs.3000/-, but instead of crediting the amount in the account of Sh. Daya Ram, the said amount was credited by the petitioner in his own account with a malafide intent by misusing the password of Sh. Sita Ram, Special Assistant. Charge No. 2: This charge was to the effect that on 27.04.2006, the petitioner prepared a debit voucher of Rs.7500/-for debiting amount from the account of one Sh. Milap Chand, which amount was to be credited in another account of said Shri Milap Chand, but with malafide intent, the petitioner posted and debited the same with a sum of Rs.8614/- instead of Rs.7500/- with his own password and the excess amount of Rs.1114/- was credited by him in the account of Shri Satish Kumar, whose account was being used by the petitioner for parking fraud money and thus money was utilized from the said account by the petitioner. Charge No. 3: This charge was to the effect that one Smt. Sundri Devi who had raised a demand loan against her FDR requested for premature cancellation of the said FDR and adjustment of demand loan account. After adjustment of the demand loan, a residual sum of Rs.58958/- was required to be credited to her account. However, the petitioner prepared and posted the vouchers in such a way that an amount of Rs.51958/- was credited in the account of Smt. Sundri Devi and Rs.7000/- was credited by him with his own password to the account of Shri Satish Kumar, which account was being used by him for parking and utilizing money. Charge No. 4: Fourth charge was that on 20.07.2006, the petitioner prepared a credit voucher on pay in slip for collection of a local cheque for Rs.75075/- for crediting the same in the account of Sh. Desh Raj and Suman Prabhakar. He debited the said cash order dated 30.06.2006 without any mandate from the payee of cash order and entered the vouchers in the system with his own password and on the same day, he fraudulently debited the same from the account of Desh Raj and Suman Prabhakar and credited it in the account of Satish Kumar with a malafide intent, whose account was being used by him for parking and utilizing money. Charge No. 5: On 27.06.2006, one Sh. Anil Mahajan got his FDR for an amount of Rs.63880/- prematurely cancelled. The petitioner prepared debit/credit voucher for Rs.67292/- for credit to C/C account of the customer. However, while entering the vouchers in the system, he debited Rs.68292/- and credited customer’s account with Rs.67292/- and Rs.1000/- was illegally credited by him in the account of one Shri Satish Kumar, which account was being used by him to park the money. Charge No. 6: This charge was to the effect that on 16.10.2003 while working as a Clerk, the petitioner prepared debit/credit vouchers for Rs.4489/- and credited the same without vouchers to O/D account of one Shri Ashok Kumar Patial, a staff member and debited the account of said Sh. Ashok Kumar Patial without vouchers and without any mandate from Sh. Ashlk Patial on the same day and credited the same to his own account and thus misappropriated the bank’s money and committed fraud. Charge No. 7: This charge was to the effect that on 08.06.2004, one Sh. Ashok Kumar Patial without vouchers and without any mandate from Sh. Ashlk Patial on the same day and credited the same to his own account and thus misappropriated the bank’s money and committed fraud. Charge No. 7: This charge was to the effect that on 08.06.2004, one Sh. Chaman Lal handed over a bearer cheque for Rs.4000/- issued by one Sh. Narinder Singh for payment across the counter. The petitioner did not handover token No. 30 nor payment was made immediately and, thus, customer left the bank premises with the intentions to come back after sometime. In the meanwhile, the cheque in question was in the custody of the petitioner and he altered the amount mentioned therein from Rs.4000/- to Rs.14,000/- with a malafide intent and attempted to defraud the bank to the tune of Rs.10,000/-. Charge No. 8: Charge No. 8 was that Branch Mehre was migrated to CBS system on 08.01.2006 and interest paid on special fixed deposit amount up to 07.01.2006 was not up loaded in the system, therefore, system again paid the interest from the date of FDR. As such, excess interest was credited by the system in the savings accounts of Spl. FDRs account holders. This fact was known to the petitioner, so he fraudulently debited in the system without vouchers with his own password and credited the same in the account of Satish Kumar, which account was being used by the petitioner for parking and utilizing the money. Charge No. 9: This charge was to the effect that the petitioner had debited fraudulently without vouchers the amount mentioned against each account referred to in this charge by using his own password and passed/verified the debits by misusing the passwords of creditors and credited the amount to his own account with malafide intentions. Charge No. 10: This Charge was to the effect that the petitioner had withdrawn the money credited by him fraudulently in SF Account No.2528000100158444 at Branch Office Mehre of Satish Kumar by using his ATM Card between 20.07.2006 to 18.08.2006, i.e. an amount of Rs.81566/-. 4. The petitioner was called upon to submit his response to the said Article of Charges. It is not clear from the pleadings as to whether any response was filed by the petitioner to the said Article of charges or not. 4. The petitioner was called upon to submit his response to the said Article of Charges. It is not clear from the pleadings as to whether any response was filed by the petitioner to the said Article of charges or not. Learned counsel for the petitioner also was not in a position to submit as to whether any response was filed by the petitioner or not. 5. Thereafter, departmental proceedings were held against the petitioner and the inquiry officer submitted his report dated 11.06.2007 to the disciplinary authority. On the basis of the material produced on record by the inquiry officer, he concluded that all the charges against the petitioner stood proved. 6. Thereafter, the disciplinary authority vide communication dated 28.09.2007 informed the petitioner that on the basis of the inquiry report, the disciplinary authority had tentatively decided that the ends of justice would be met by proposing a punishment of “Dismissal from Bank’s Service without notice” as laid down in para 19.6(a) read with para 6.6(a) of Bipartite Settlement dated 19.10.66 and 10.04.2002 respectively as amended from time to time. The disciplinary authority provided the petitioner an opportunity of personal hearing alongwith his defence representative, if any, to appear before the disciplinary authority on 12.10.2007. This was followed by order passed by the disciplinary authority dated 22.10.2007 vide which, punishment of “Dismissal from Bank’s Service without notice” as specified in para 6.6(a) of Bipartite Settlement dated 10.04.2002 as amended from time to time for the gross misconduct on the part of the petitioner was imposed upon him. This order was challenged by the petitioner by way of appeal dated 17.11.2007 before the appellate authority. However, the appellate authority vide its order dated 02.01.2008 rejected the appeal of the petitioner and confirmed the punishment imposed by the disciplinary authority. 7. Feeling aggrieved, the petitioner filed the present writ petition challenging therein the order of disciplinary authority as well as of the appellate authority. 8. However, the appellate authority vide its order dated 02.01.2008 rejected the appeal of the petitioner and confirmed the punishment imposed by the disciplinary authority. 7. Feeling aggrieved, the petitioner filed the present writ petition challenging therein the order of disciplinary authority as well as of the appellate authority. 8. Before proceeding further on merit, it is pertinent to point out that a preliminary objection has been taken by the respondents with regard to the maintainability of the writ petition on the ground that the petitioner was a workman and in the matter of employment or termination of service or service dispute, the matter is governed by the provisions of the Industrial Disputes Act, 1947 in view of the Sastry Award and Bipartite Settlements arrived at between the Bank and its Workmen Unions and accordingly, as per the respondents, the present petition is not maintainable as there is alternative and efficacious remedy available to the petitioner by way of approaching an appropriate Court of law under the Industrial Disputes Act. 9. No rejoinder has been filed by the petitioner to the reply filed by the respondents nor any rejoinder was intended to be filed by the petitioner when the matter was finally heard by this Court. 10. I will deal with the preliminary objection taken by the respondents first. The submission of Mr. Ajay Kumar, learned Senior Counsel appearing for the respondents is that there is an All India Industrial Tribunal (Bank Disputes) Award on the Industrial Disputes Between Certain Banking Companies and their Workmen. As per him, the petitioner as well as the respondents are governed by the provisions of this award. Besides this, there is/are Bipartite Settlement arrived at between the Banks and its Workmen Union which are binding upon both the parties. Mr. Ajay Kumar has submitted that there is a Bipartite Settlement dated 10th April, 2002 between the Indian Banks’ Association and various Banking Unions on disciplinary action and procedure therefore. This Bipartite Settlement according to Mr. Ajay Kumar is binding upon the petitioner as well as the respondents. A copy of the said Bipartite Settlement has been provided by the learned counsel for the respondents during the course of arguments, which is taken on record. This Bipartite Settlement according to Mr. Ajay Kumar is binding upon the petitioner as well as the respondents. A copy of the said Bipartite Settlement has been provided by the learned counsel for the respondents during the course of arguments, which is taken on record. According to learned Senior Counsel appearing for the respondents, the course open to the petitioner to challenge the orders passed by the disciplinary authority and the appellate authority was by approaching the Labour Court as the petitioner happens to be a workman and he could not have filed the present writ petition. Therefore, according to him, the present petition is not maintainable and the same is liable to be dismissed. 11. Mr. Dhaulta, learned counsel for the petitioner, on the other hand has submitted that the present writ petition is maintainable because according to him, petitioner was not having any other alternative and efficacious remedy to assail the impugned orders except by filing the present writ petition. According to him, petitioner did not had any remedy under the provisions of the Industrial Disputes Act against the orders passed in disciplinary proceedings. 12. Before referring to the respective contentions of the parties, it is pertinent to take note of the relevant provisions of the Bipartite Settlement dated 10th April, 2002. This Settlement has been arrived at under Section 2(p) and Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules, 1957. Parties to the said Settlement are 52 Banks, which at the relevant dated were “A” Class Banks and listed in Schedule 1 to the said Memorandum of Settlement and their workman. The expression “gross misconduct” has been defined in Clause-5 of the said Settlement. As per Clause-6 of the Settlement, an employee found guilty of gross misconduct can be imposed the following punishments: “6. The expression “gross misconduct” has been defined in Clause-5 of the said Settlement. As per Clause-6 of the Settlement, an employee found guilty of gross misconduct can be imposed the following punishments: “6. An employee found guilty of gross misconduct may: (a) be dismissed without notice; or (b) be removed from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity .as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or (c) be compulsorily retired with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or (d) be discharged from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment: or (e) be brought down to lower stage in the scale of pay up to a maximum of two stages; or (f) have his increments stopped with or without cumulative effect; or (g) have his special pay withdrawn; or (h) be warned or censured, or have an adverse remark entered against him; or (i) be fined.” 13. The procedure to be followed is prescribed in Clause-12. As per Clause-14 of the Settlement, the Chief Executive Officer or the Principal Officer in India of a Bank or an Alternate Officer at the Head Office or Principal Office nominated by him for the purpose shall decide which officer (i.e. the disciplinary authority) shall be empowered to take disciplinary action in the case of each office or establishment and he shall also decide which officer or body higher in status than the officer authorized to take disciplinary action shall act as the appellate authority to deal with or hear and dispose of any appeal against orders passed in disciplinary matters. The Bipartite Settlement is silent as to what is the next course available to the workman in case appeal filed by him is decided against the workman by the appellate authority. 14. The Bipartite Settlement is silent as to what is the next course available to the workman in case appeal filed by him is decided against the workman by the appellate authority. 14. The moot question is whether in such circumstances, the orders passed by the disciplinary authority and the appellate authority have to be challenged under the provisions of the Industrial Disputes Act or the workman can invoke the extraordinary jurisdiction of a High Court under Article 226 of the Constitution of India. 15. As mentioned above, perusal of the Bipartite Settlement dated 10th April, 2002 demonstrates that this Settlement has been arrived at under Section 2(p) and Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules, 1957. Thus, this Settlement owes its origin to Industrial Disputes Act. 16. The chargesheet served upon the petitioner containing Article of Charges demonstrate that the alleged acts of mis-conduct attributed to the petitioner were referable to Clause 5(j) of the Bipartite Settlement dated 10th April, 2002 as amended from time to time. 17. The order passed by the disciplinary authority dated 22.10.2007 vide which, penalty of dismissal from Bank’s service without notice was imposed upon the petitioner has been imposed upon him as provided in para 6.6(a) of Bipartite Settlement dated 19.10.1966 and 10.04.2002 respectively as amended from time to time. 18. Similarly, the order passed by the appellate authority dated 02.01.2008 also refers to said Bipartite Settlement dated 10th April, 2002. 19. From the above, it is apparent that the disciplinary proceedings were initiated against the petitioner by issuance of the charge-sheet under the provisions of the abovementioned Bipartite Settlement. Not only this, the punishment imposed upon the petitioner is also as provided in the Bipartite Settlement and further remedy of an appeal has also been availed by the petitioner and adjudicated upon by the appellate authority as per the provisions of the Bipartite Settlement. 20. It is in this background that this Court has to adjudicate the preliminary objection raised by the learned counsel for the respondents as to whether the remedy available to the petitioner against the orders passed by the disciplinary authority and the appellate authority is by way of filing the present writ petition or he has to approach the appropriate authority/Court of law by invoking the provisions of Industrial Disputes Act. 21. 21. The Industrial Disputes Act, 1947 is both a procedural as well as substantive law. The rights which a workman is entitled to, as defined and provided under the said Act are enforced and protected by way of a mechanism which is also provided in the Statute itself. 22. As already noted above, Bipartite Settlement owes its origin to the provisions of the Industrial Disputes Act. It is not in dispute that the said Bipartite Settlement is binding upon both the petitioner as well as the respondents. Therefore, in these circumstances, in my considered view, it was not open to the petitioner to have had challenged the orders passed by the disciplinary authority and the appellate authority under the provisions of Bipartite Settlement by way of a writ petition in this Court, as his remedy was by assailing the same by invoking the mechanism provided for under the Industrial Disputes Act, which was an alternative and efficacious remedy available to the petitioner in law. 23. There cannot be any doubt whatsoever that existence of alternative remedy is not an absolute bar in entertaining the writ petition. This Court, however, normally does not exercise its discretion by way of self restraint and asks the petitioner to avail the other remedies available to him at the first instance if such remedy is speedy and efficacious one. 24. It is not in dispute that the petitioner is a workman under the Industrial Disputes Act and it is not the case of the petitioner that the alternative remedy available under the Industrial Disputes Act is not speedy or is not an efficacious remedy. 25. 24. It is not in dispute that the petitioner is a workman under the Industrial Disputes Act and it is not the case of the petitioner that the alternative remedy available under the Industrial Disputes Act is not speedy or is not an efficacious remedy. 25. The result of the discussion may be summed up as follows: Whenever a workman employed in an industry (which in the present case respondent-bank obviously is) is dismissed or removed from service, including where said dismissal is result of a departmental inquiry and the workman desires to challenge the legality of such action of the management of an industry, on grounds of violation of procedure, as regulated by the prescribed rules or rules of natural justice, the workman should resort to the remedy available under Section 10 of the Industrial Disputes Act and a petition under Article 226 should not be entertained, notwithstanding the fact that the industry is under the management of a statutory body, which is an ‘authority’ falling within the definition of the work ‘State’ as defined in Article 12 of the Constitution of India and amenable to the writ jurisdiction of High Court under Article 226 of the Constitution of India. 26. The contention of learned Senior Counsel for the respondent, if otherwise seen, is that if the petitioner is a workman employed in an industry and there is a dispute pertaining to the legality of dismissal from service, the same would amount to an industrial dispute within the meaning of Section 2-A of the Industrial Disputes Act which dispute can always legitimately be referred to a Labour Court for adjudication in terms of Section 10 of the said Act. This contention of learned Senior Counsel is not without any merit. 27. A dispute regarding the dismissal of an individual workman is also in view of Section 2-A an industrial dispute which may be referred for adjudication by the Labour Court. In any such reference the first thing which the Labour Court is required to do is to determine whether or not the domestic enquiry conducted against the workman was valid. In case the Tribunal comes to the conclusion that either no enquiry was conducted or the enquiry conducted was defective for any reason whatsoever, the Management has the choice of adducing evidence before the Industrial Tribunal in order to prove the charge framed, against the employee. In case the Tribunal comes to the conclusion that either no enquiry was conducted or the enquiry conducted was defective for any reason whatsoever, the Management has the choice of adducing evidence before the Industrial Tribunal in order to prove the charge framed, against the employee. It was so held by Hon’ble Supreme Court in Cooper Engineering Ltd. Vs. P. P. Mundhe, 1975 (2) SCC 661 where their Lordships observed thus :- "We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court." 28. To the same effect is the view taken by their Lordships in Bharat Sugar Mills Ltd. Vs. Jai Singh, 1962 (3) SCR 684 and in The Management of Ritz Theatre (Private) Ltd., Delhi Vs. Its Workmen, AIR 1963 SC 295 , where it was authoritatively held that the mere fact that no enquiry was held or that the enquiry had not been conducted properly, did not absolve the tribunal; of its duty to decide whether the misconduct alleged against the workman had been established. The proper way for performing this duty on the part of the tribunal was to record evidence of both the sides in respect of the alleged misconduct and record its own independent finding. In other words where the tribunal is dealing with an industrial dispute, if it is satisfied that no enquiry has been held or that the enquiry which has been held is not proper or fair or that the findings recorded by the Inquiry Officer are perverse the whole issue is at large before the tribunal. This position is much too well-settled by the judgments referred to above, to require any reiteration. 29. This position is much too well-settled by the judgments referred to above, to require any reiteration. 29. As a corollary it follows that the power and the jurisdiction of the labour court in examining the validity of the domestic enquiry held against the employee, far exceeds that of this Court, under Article 226, for this Court, cannot go beyond the point of examining the validity of the enquiry to look into the merits of the charge framed against the provided. To that extent therefore the remedy provided by the Act, is certainly more comprehensive than that available under Article 226 of the Constitution. 30. There is yet another aspect of the matter; and the same relates to the introduction of Section 11-A into the Act. With the addition of the said provision, the power of the labour court now extends to examining the quantum of punishment to be imposed upon the workman. The labour court is on the strength of Section 11-A of the Act entitled to interfere with the punishment imposed upon the employee, even when the charge framed against him/her, stands proved and the enquiry is found to have been validly conducted. This, power, is also peculiar to the scheme of the Act and may not be exercisable by this court, under Article 226, for an employer, may be entitled to insist upon an order of severe punishment even when, a lesser penalty may have met the ends of justice. 31. Therefore, in my considered view, the petitioner had an alternative and efficacious remedy available to him as provided under the Industrial Disputes Act and the present petition was not maintainable in view of the alternative remedy available to the petitioner. 32. Similar view has been taken by the Karnataka High Court in Hariba Vs. K.S.R.T.C., 1983 (1) Kar LJ 261 and in Mohini K. Vs. General Manager, Syndicate Bank, Manipal, 1995(1) LLJ 351 and Calcutta High Court in Nirmalendu Roy Vs. Steel Authority of India and Anr., 2002 (4) Cal LLJ 253. 33. In view of the above, the present writ petition is dismissed on the ground of maintainability, leaving liberty for the petitioner to resort to the remedy available under the provisions of the Industrial Disputes Act. No order as to costs.