1 wp75.09.sxw
CPM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 75 OF 2009
1. The Jain Sahakari Bank Ltd.,
a multi State Co-operative Bank,
registered under the Multi State
Co-operative Societies Act,
having its Head Office at Hira Baug,
Khattaralli Lane, C.P. Tank,
Mumbai-400 004.
2. Madhav Balkrishna Jambhekar,
The Chief Executive Officer,
The Jain Sahakari Bank Ltd.
Hira Baug, Khattaralli Lane, C.P. Tank
Mumbai 400-004. ...Petitioners.
Vs.
Smt. Bharti Joshi,
8/208, Kapasi Nivasi Co-operative
Housing Soceity, Ltd., Liliya Nagar,
Goregaon (West), Mumbai-400 062. ...Respondent.
Mr. P.M. Palshikar for the Petitioners.
Mr. A.S. Peerzada for the Respondent.
CORAM : A.A. SAYED, J.
DATE : 27TH NOVEMBER,, 2012.
JUDGMENT
1. This Petition impugns an order dated 14-10-2008 passed by the 1/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 2 wp75.09.sxw Labour Court, on an Application filed by the Respondent-employee under Section 33C(2) of the Industrial Dispute Act, 1947. By the impugned order, the Application was partly allowed and the Petitioner-Bank was directed to pay the Respondent-employee an amount of Rs.1,28,623/- towards difference in salary, leave travel allowance, medical allowance, encashment of casual leave, etc, for the suspension period from 23-11-2001 to 17-08-2004 as against the claim of Rs. 1,68,323/-.
2. The Respondent-employee (hereinafter referred to as 'the employee') joined the Petitioner-Bank (hereinafter referred to as the 'Bank') in 1986 as a Junior Clerk. On 23 rd November, 2001, a charge-sheet was issued to her and she was suspended pending inquiry for allegedly committing serious acts of misconduct.
3. A Show Cause Notice was issued to the employee by the Bank after the inquiry officer submitted his Report holding her guilty of charges levelled against her. The employee thereupon filed Complaint (ULP) No. 214 of 2003 apprehending that she may be dismissed. On 25-
4-2003, the Labour Court directed status quo to be maintained with regard to the services of the employee. During the pendency of the 2/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 3 wp75.09.sxw Complaint, by letter dated 17th August, 2004, the Bank informed the employee that they will not take any action against her for dismissal or discharge and that they are only going to stop her increment. By the said letter, the suspension order of employee was also revoked and she was advised to report for work. In these circumstances, the Labour Court by its order dated 25 th February, 2005, disposed of the Complaint, since the apprehension of the employee of being dismissed no longer survived.
4. On 6th May 2005 the order of punishment was passed by the Bank.
The relevant portion of the order of punishment as recorded in letter dated 6th May 2005 reads as follows :
"This has further reference to our letter no. JSB/289/04-05 dt. 17-08-2004 wherein we had informed you about our decision to stop your few increments by way of punishment.
It is now decided to stop five annual increments to you, with cumulative effect which will come into effect from the date of your next increment falling due, i.e. on 1st July, 2005 and your next increment will be on 1st July, 2010." You are eligible for revised D.A., C.C.A., & H.R.A. from the effective date of Memorandum of Settlement and for the reimbursement of medical reimbursement and leave travel allowance from the date of revoking your suspension order i.e. 17-08-2004 and your suspension from 23-11-2001 to 16-8- 2004 is confirmed."3/13 ::: Downloaded on - 09/06/2013 19:26:15 :::
4 wp75.09.sxw
5. Mr. Palshikar, learned Counsel on behalf of the Bank, made following submissions:
(i) that the Application under section 33C (2) is not maintainable as there is no existing right in favour of the employee in respect of the amount claimed by her;
(ii) that the proceedings under section 33C(2) is in the nature of execution proceedings and there is no adjudication in favour of the employee in respect of her claim;
(iii) that the disciplinary authority has taken a decision to confirm the suspension period from 23.11.2011 to 16.08.2004 of the employee and specifically held that the employee shall be eligible for the allowances prospectively from the date of revoking the suspension order i.e. 17.8.2004 and therefore the employee is not entitled to the amount claimed for the suspension period;
(iv) that the employee has not challenged the order of punishment dated 6th May, 2005, which order has attained finality.
6. In support of his submissions, the learned Counsel has placed reliance on the following two Judgments :
(a) Sakharam Parab vs.Kadamba Transport Corporation, Panaji 4/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 5 wp75.09.sxw 1999 LAB IC 2881,
(b) H.P. State Electricity Board vs Ranjeet Singh 2008 (4) SCC
241.
7. Mr. Peerzada, learned Counsel for the employee, on the other hand, supported the impugned order and submitted as follows:
(i) that the Petitioner has an existing right to make a claim under section 33C (2);
(ii) that sub-clause (5A) of the Model Standing Order 22 clearly stipulates that if as a result of the inquiry held or explanation tendered, it is decided not to take action against the employee under sub-clause (I) the employee is deemed to be on duty and is entitled to full wages and all other privileges during the full suspension period;
(iii) that there is no adjudication necessary and at best, it is a question of only interpretation of the Model Standing Orders which govern the parties.
8. I have considered the rival contentions of the parties and perused the material on record.
5/13 ::: Downloaded on - 09/06/2013 19:26:15 :::6 wp75.09.sxw
9. From the facts narrated earlier, it would be noticed that:
(1) the employee was under suspension from 23-11-2001 to 16-08-
2004, (2) the suspension was revoked on 17th August, 2004, (3) the order of punishment was passed on 6th May, 2005 whereby the suspension was confirmed from 23-03-2001 to 16-08-2004, and (4) the punishment inflicted on the employee was that of withholding increments of 5 years.
10. There is no dispute about the fact that the parties are governed by the Model Standing Orders for the Banking Industry notified by the State of Maharashtra in exercise of powers conferred by Section 35(5) of Bombay Industrial Relations Act, 1943. To appreciate the controversy it would be necessary to extract the relevant Standing Orders. Standing Order 22 deals with punishment for misconduct, sub-clauses (1), (5) (as amended) and (5A) (as amended) read as follows :
"22. Punishment for misconduct:
(1) An employee guilty of misconduct may be-
6/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 7 wp75.09.sxw
(a) warned or censured, or
(b) fined, or
(c) by an order in writing signed by the Manager dismissed without notice."
............
(5) An employee against whom any action is proposed to be taken under sub-clause (c) of clause (1) of this Standing Order may be suspended for a period, reasonable in the circumstances of the case, pending the holding and completion of an enquiry or for the period if any, allowed to him for giving his explanation. The order of suspension may take effect immediately on its communication to the employee.
(5-A) Subject to the provisions of the Payment of Wages Act, 1936, an employee who is placed under suspension under sub- clause (5) shall, during the period of such suspension, be paid a subsistence allowance at the following rates, namely:
(i) For the first ninety days of the suspension period, subsistence allowance to be paid per month shall be equal to one half of basic wages, dearness allowance and other compensatory allowances to which the employee would have been entitled if he were on leave with wages.
(ii) If the inquiry gets prolonged and the employee continues to be under suspension for a period exceeding ninety days the subsistence allowance to be paid per month for a further period of ninety days shall be equal to three fourths of such basic wages, dearness allowance and other compensatory allowance.
(iii) If the inquiry is not completed within a period of 180 days the employee shall be paid wages, dearness allowance and other compensatory allowances in full as subsistence allowance to be paid per month until the inquiry is finally conducted.
Provided that, where the finding of the inquiry officer shows that such inquiry is prolonged beyond a period of 90 days or as the case may be 180 days, for reasons directly attributable to the employee the subsistence allowance to be paid per month shall for the period exceeding 90 days or, as the case may be, 180 days, shall be reduced to one-half of such basic wages, dearness allowance and other compensatory 7/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 8 wp75.09.sxw allowances.
(iv) If as a result of the inquiry held or explanation tendered, it is decided not to take any action against the employee under clause (1), the employee shall be deemed to have been on duty and shall be entitled to full wages minus such subsistence allowance as he may have already drawn and to all other privileges for the full period of suspension." (emphasis supplied)
11. Learned Counsel on behalf of the Bank has not disputed or questioned the calculations of the amount awarded by the Labour Court and the only argument canvassed before the Court is that the Application under Section 33C (2) filed by the employee is not maintainable since there is no existing right to the amount claimed by the employee. It is an admitted position that the inquiry in respect of the misconduct alleged, was not completed within 180 days. Indubitably, the punishment imposed of withholding annual increments of 5 years by the order of punishment dated 6-05-2005, does not figure in the punishments enumerated in sub-clause (1) of Standing Order 22 extracted above. In other words, no action falling under sub clause (I) of Standing Order 22 was taken by the Bank against the employee. The case of the employee would thus squarely fall under sub-clause (5A) of Standing Order 22 reproduced above and the employee would therefore be deemed to have been on duty and would be entitled to full wages minus such subsistence 8/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 9 wp75.09.sxw allowance as she may have already drawn and all other privileges for the full period of suspension. The fact that the punishment order dated 6th May, 2005 has not been subjected to challenge by the employee would in no manner enure to the benefit of the Bank in the facts and circumstance of the present case.
12. It is trite that suspension is not a termination of services and there is no cessation of master and servant relationship during the period of suspension and employee continues to be in employment and the employee is paid subsistence allowance instead of salary.
Once the Bank has taken a decision only to withhold increments of 5 years, in view of the provisions of the Model Standing Orders as discussed above, the employee is deemed to be on duty and would be entitled to full wages minus subsistence allowance already drawn and other privileges for the full suspension period.
13. In Central Bank of India Ltd. Vs. P.S. Rajgopalan, 1964 SCR 3-140, a Constitution Bench of the Hon'ble Supreme Court held as follows :
" ...... In our opinion, on fair and reasonable construction of sub- section (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money the 9/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 10 wp75.09.sxw Labour Court inevitably has to deal with the question as to whether the workman has a right to receive the benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with the question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise.
.......The claim under S.33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be proceeded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2) .......We must accordingly hold that S. 33(2) takes within is purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employees.
........ like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under S. 33 C (2). Therefore, we feel no difficulty in holding that for the purpose of making necessary determination under S. 33C(2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests. (emphasis supplied)
14. In the present case, the entitlement of the employee is based on the relevant provisions of the Standing Orders as indicated above, which are explicit and there is no adjudication necessary in respect thereof. Pertinently it is not even suggested on behalf of the Bank that the said provisions of the Standing Orders would not be applicable to the employee or that they could be interpreted 10/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 11 wp75.09.sxw otherwise. The Bank cannot extricate itself from its liability to pay the dues of the employee on the plea that the punishment order was not subjected to challenge by the employee. In any event, the punishment order dated 06-05-2005 does not deny the employee of the allowances for the suspension period. The employee's claim is on the basis of an existing right and even otherwise, only an incidental issue. The Application of the employee would thus fall within the scope of section 33C(2), and therefore, maintainable.
15. H.P. State Electricity Board Vs. Ranjeet Singh, (supra) relied upon by the learned Counsel for the Bank was a case concerning 'bonus' and the matter was ultimately remanded back to the High Court by the Hon'ble Supreme Court, since the Hon'ble Supreme Court was of the view that 'bonus' is not covered by the Second Schedule and that it appears in Item 5 of Third Schedule and the Labour Court under the Act could decide only the matters specified in the Second Schedule and therefore the question of entitlement to bonus could not have been decided by the Labour Court. In the case in hand, there is such no dispute about the jurisdiction of the Labour Court. This case would therefore be of no assistance to the Bank.
11/13 ::: Downloaded on - 09/06/2013 19:26:15 ::: 12 wp75.09.sxw
16. In Sakharam Parab Vs. M/s Kadamba Transport
Corporation Ltd., Panaji, (supra) cited by the learned Counsel for the Bank, the Division Bench of this Court was concerned with sub-
clause (F) and (G) of Clause 29 of the relevant Standing Orders and the Division Bench held that the Standing Orders were silent on the issue involved therein leaving it to the discretion of the authorities who would be required to pass a separate order and it was not a mere interpretation of the award or settlement. In the present case the provisions of Standing Orders are clear and do not admit of any ambiguity, and the said case therefore, would have no application to the facts of the present case.
17. In view of the aforesaid discussion, I find no fault or infirmity in the impugned order of the Labour Court to warrant interference in exercise of writ jurisdiction of the Court. The Petition is accordingly dismissed. Rule is discharged, with no order as to costs. The employee shall be entitled to withdraw the amount deposited by the Bank in this Court along with accrued interest. It is clarified that except as recorded hereinbefore, no other point is urged before the Court.
12/13 ::: Downloaded on - 09/06/2013 19:26:15 :::13 wp75.09.sxw
18. Upon the request of the learned Counsel on behalf of the Bank, it is directed that the operation of this order shall remain stayed for 6 weeks from today.
( A.A. SAYED, J. ) 13/13 ::: Downloaded on - 09/06/2013 19:26:15 :::