Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 990 (GAU)

DEBOJYOTI DAS v. UNION OF INDIA

2016-11-08

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : Micheal Zothankhuma, J. Heard Mr. S. Das, learned counsel for the petitioner and also heard Mr. S. Chamaria, learned counsel for the Bank. 2. The petitioner by way of this writ petition has challenged the order of compulsory retirement from service issued vide final order dated 29.01.2010 by the Chief Manager and Disciplinary Authority. The petitioner's counsel submits that in pursuance to a Disciplinary Proceeding conducted against the petitioner, the petitioner was imposed with a penalty of compulsory retirement with superannuation benefits vide final order dated 29.01.2010. 3. The petitioner preferred an appeal before the appellate authority vide appeal dated 12.03.2010. Thereafter, the appellate authority gave its decision whereby the order of the disciplinary authority 29.01.2010 was upheld. The appeal preferred by the petitioner stood rejected vide the appellate authority letter dated 22.07.2010. 4. At the outset, Mr. S. Chamaria, counsel for the bank, submits that in pursuance to an earlier Disciplinary Proceeding initiated against the petitioner, the petitioner had approached the Industrial Tribunal, Dibrugarh. Thereafter, the award made by the Industrial Tribunal was challenged by the petitioner vide Civil Rule No. 212/1992. Thereafter, Writ Appeal No. 354/1997 was filed and subsequently another WP(C) No. 981/2001 was filed in the said matter. The petitioner was eventually reinstated in service. 5. Mr. S. Chamaria, counsel for the bank, submits that the present penalty order imposed upon the petitioner vide order dated 29.01.2010 is based upon a different set of facts. He submits that the petitioner should have again approached the Industrial Tribunal under the Industrial Disputes Act, 1947 as the petitioner is a workman, as defined in the Industrial Disputes Act, 1947. 6. I have heard the learned counsels for the parties. 7. The basic issue here is whether there is alternative remedy available to the petitioner and if so, whether the petitioner should have exhausted his alternative remedy. 6. I have heard the learned counsels for the parties. 7. The basic issue here is whether there is alternative remedy available to the petitioner and if so, whether the petitioner should have exhausted his alternative remedy. Section 2(S) and Section 2A states as follows:- "2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) Who is employed in the police service or as an officer or other employee of a prison; or (iii) Who is employed mainly in a managerial or administrative capacity; or (iv) Who, being employed in supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. 2A-Dismissal, etc., of an individual workman to be deemed to be an industrial dispute-Where any employer discharges, dismisses, retrenches or otherwise terminates the serves of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute." 8. A perusal of the above definitions shows that the petitioner is a workman covered under the Industrial Disputes Act. 9. In view of the fact that an alternative remedy is available, as is provided for in Section 2A, which has not been exhausted by the petitioner, the present writ petition is dismissed. The petitioner is however, given the liberty to avail of the alternative remedy, as per the Industrial Disputes Act, 1947, if so advised.