212_wp_3904_2001.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.3904 OF 2001
Bank of India, a Nationalised Bank ...Petitioner
Versus
1. Bank of India Staff Union
2. Shri V.L. Kamble,
Member, Industrial Tribunal, Pune. ...Respondents
.....
Mr. R.S. Pai with Mr. Aniket Mokashi i/b. M/s. Haresh Mehta
and Co. for the Petitioner.
Mr. N.V. Vechalekar for the Respondent No.1.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
JUDGMENT RESERVED ON : 27th June, 2017.
JUDGMENT PRONOUNCED ON :12th Sept., 2017 P.C.:-
By this Writ Petition filed under Article 226 of the Constitution of India, the Petitioner, which is a Nationalised Bank, has challenged the award dated 4.5.2000 in Reference (IT) No. 40/1994. By the impugned award the learned Member of Industrial Tribunal, Pune set aside the order of punishment and directed the Petitioner Bank to pay the monetary and other benefits to the three charged employees, with liberty to the Petitioner Bank to impose any one punishment after following the due process.
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2. The brief facts necessary to decide this Petition are as under:-
The Regional Manager of the Petitioner Bank had issued three separate charge sheets to its employees viz. Shri S.R. Natu (Special Assistant), Shri D.K. Bagwe (Cashier) and Shri S.S. Samant (cashier-cum- accountant) for committing several acts and omissions which constituted gross misconduct under clause 19.5 of Bipartite settlement dated 19.10.1966. Shri G.S. Chavan, the Manager of the Petitioner Bank was appointed as an Enquiry Officer. He conducted enquiry against the three employees and vide two separate reports both dated 31.5.1993 and the third report dated 25.5.1993 he held the said employees (S.R. Natu, D.K. Bagwe and S.S. Samant) guilty of alleged misconduct.
3. Based on the findings recorded by the Enquiry Officer, show cause notices as regards the proposed penalty came to be issued to the said three employees. After giving personal hearing to these employees, the Disciplinary Authority vide order dated 12.4.1993 and two separate orders dated 13.4.1993 imposed penalty in respect of each of the charges. The gist of the charges levelled and the penalty imposed against the three employees is as under:-
Megha 2/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc Shri S.R. Natu :- Charge Punishment awarded I-Disorderly behaviour Reduction of basic pay to the next lower on 7.9.1990 on the stage for a period of 2 years in terms of premises of the Bank clause 19.6 of the First Bipartite which constituted settlement dt.19.10.66 as modified by gross misconduct clause 3 of the Bipartite Settlement dt. under Clause 19.5 (c) 31.10.1979. of the Bipartite Settlement. II-Disorderly Reduction of basic pay to the next lower behaviour on 8.9.1990 stage for a period of 2 years in terms of on the premises of the clause 19.6 of the First Bipartite Bank and commission Settlement dt. 19.10.66 as modified by of acts prejudicial to Clause 3 of the Bipartite Settlement dt. the interest of the 31.10.1979. Bank, which constituted gross misconduct under 19.5(c) and 19.5(j) of the Bipartite Settlement III- Acts, omissions Withdrawal of Special Assistant's /gross negligence on allowance permanently in terms of 30.10.1990 which clause 19.6 of the Bipartite Settlement were prejudicial to the dt.19.10.66 as modified by Clause 3 of interest of the Bank the Bipartite Settlement dt. 31.10.1979. and constituted gross misconduct under Clause 19.5 (j) of the Bipartite Settlement. IV- Several acts and Withdrawal of Special Assistant's omissions committed allowance permanently in terms of between 30.10.1990 clause 19.6 of the First Bipartite to 23.3.1991, Settlement dt. 19.10.66 as modified by prejudicial to the clause 3 of the Bipartite settlement dt. interest of the Bank 31.10.1979. and amounting to willful insubordination and disobedience of Megha 3/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc lawful and reasonable orders. The said acts constituted gross misconduct under 19.5 (e) and 19.5(j) of the Bipartite Settlement V-Acts and omissions Stoppage of First stagnation increment on 11.3.1991 and for a period of 6 years in terms of clause 12.3.1991 amounting 19.6 (d) of the First Bipartite Settlement to willful dt. 19.10.1966. insubordination and disobedience of lawful and reasonable orders. The said acts constituted gross misconduct under 19.5 (e) and 19.5(j) of the Bipartite Settlement Shri D.K. Bagwe:- Charge Punishment awarded I- Acts and omissions on Withdrawal of Cashier's allowance 8.9.1990 which amounted to permanently in terms of Clause willful insubordination and No.19.6 of the First Bipartite disobedience of lawful and Settlement dt. 19.10.1966 as reasonable orders and modified by clause 3 of the Bipartite constituted gross misconduct settlement dt. 31.10.1979. under 19.5 (e) Bipartite Settlement. II- Acts and omissions Stoppage of two annual increments committed on 8.9.1990, permanently in terms of claue prejudicial to the interest of No.19.6(d) of the First Bipartite the Bank which constituted Settlement dated 19.10.1966. gross misconduct under Clause 19.5 (j) of the Bipartite Settlement. III- Acts and omissions Stoppage of one annual increment between 3.12.1990 and permanently in terms of clause 23.3.1991 amounting to 19.6(d) of the first Bipartite Megha 4/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc
willful insubordination and Settlement dt.19.10.1966. disobedience of lawful and reasonable orders. The said acts constituted gross misconduct under 19.5 (e) of the Bipartite Settlement.
Shri S.S. Samant :-
Charge Punishment awarded
I-Acts and omissions on Stoppage of three annual increments
11.3.1991 amounting to permanently in terms of clause 19.6
willful insubordination and (d) of the First Bipartite Settlement
disobedience of lawful and dt. 19.10.1966.
reasonable orders. The said
acts constituted gross
misconduct under 19.5 (e)
of the Bipartite Settlement.
II-Acts and omission on Stoppage of next two annual
11.3.1991 which were increments permanently in terms of
prejudicial to the interest of clause 19.6 (d) of the First Bipartite
the Bank and also Settlement dt.19.10.1966.
amounted to willful
insubordination and
disobedience of lawful and
reasonable orders. The said
acts constituted gross
misconduct under 19.5 (e)
and 19.5(j) of the Bipartite
Settlement
III-Acts and omissions Punishment of censure in terms of
committed on 12.3.1991 clause 19.6 (b) of the First Bipartite
which were prejudicial to Settlement dated 19.10.1966.
the interest of the Bank and
constituted gross
misconduct under Clause
19.5 (j) of the Bipartite
settlement.
4. All the three employees preferred appeals before the Megha 5/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc Appellate Authority. Rejection of these appeals gave rise to the industrial dispute and the consequent reference of the dispute for adjudication to the Industrial Tribunal, Pune.
5. By applications dated 30.10.1998 filed before the Industrial Tribunal, the Management as well as the Union expressed their desire to lead oral evidence in respect of the fairness of the enquiry. The Union examined two witnesses. The Management did not choose to examine any witness despite the application.
6. The learned Member of the Industrial Tribunal, after considering the said oral evidence and other material on record, held that the enquiry was fair and proper and that the Management had proved the charges of misconduct. The learned Member however, set aside the punishment imposed on the three employees mainly on the ground that the penalty imposed on these three employees was contrary to the rules and regulations and was unjustified. The Respondent No.2 further directed the Petitioner -Bank to pay the monetary as well as the other benefits to the three employees. The Respondent No.2 granted liberty to the Petitioner-Bank to impose any one punishment against each employee after following due process of Megha 6/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc law. Being aggrieved by this part of the award, the Petitioner -Bank has invoked the writ jurisdiction of this Court.
7. By order dated 29.11.2005 the learned Judge of this Court observed that the punishment inflicted by the Petitioner-Bank had already been executed. It was observed that if the Petition fails and the award is allowed to be executed, the Respondent No.1 would be entitled for monetary benefit. Hence, the interim stay as prayed for was granted.
8. Now coming to the merits of the matter, the learned counsel for the Petitioner has submitted that the Petitioner has not contravened clause 19.9 of the Bipartite Settlement. He has further submitted that the word 'or' in clause 19.6 of Bipartite Settlement cannot be read as to mean that the Disciplinary Authority can impose only one punishment for more than one misconduct. He has relied upon decision of the Apex Court in J. Jayalalitha Vs. Union of India, AIR 1952 SC 75
9. Mr. R.S. Pai, the learned counsel for the Petitioner submits that the employees were guilty of committing more than one misconduct and the Disciplinary Authority was within its powers to Megha 7/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc impose more than one punishment. He has further submitted that all the three employees are guilty of gross misconduct. He has submitted that the Petitioner-Bank has already taken a lenient view. He therefore, claims that the learned Judge was not justified in interfering with the punishment imposed by the Petitioner-Bank. In support of its contention he has relied upon the decision of the Apex Court in Chief Executive Officer, Krishna District Cooperative Central Bank Limited and Anr. Vs. K. Hanumantha Rao and Anr. (2017) 2 SCC 528
10. Mr. N.V. Vechalekar, the learned counsel for the Respondent No.1 while supporting the impugned award has submitted that the penalty imposed against the three employees is wholly disproportionate and the same is in contravention of clause 19.6 of the Bipartite settlement dated 19.10.1966. He therefore, contends that impugned award does not justify any interference.
11. I have perused the records and considered the submissions advanced by the learned counsels for the respective parties.
12. It is not in dispute that the Petitioner-Bank had issued three separate charge memoranda to its employees viz. Natu, Bagwe and Megha 8/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc Samant for committing several acts of commission and omissions, details of which are spelt out in the charge memorandum issued to each of these employees. The charges levelled against these three employees were enquired into and they have been held guilty of the said charges which constitute gross misconduct under clause 19.5 of the Bipartite settlement. Based on the findings of the Enquiry Officer, the Disciplinary Authority has imposed penalty as stated above.
13. It is to be noted that the learned Member of the Industrial Tribunal has recorded that the enquiry was fair, proper and in accordance with the principles of natural justice. It is further held that the findings recorded by the Enquiry Officer are based on material available on record and that the said findings are not perverse. The learned Member has also recorded findings that the charges of misconduct levelled against all the three employees have been conclusively proved. The Respondent No.1 has not challenged these findings and as such these findings have attained finality.
14. The only issue is as regards the proportionality of the penalty imposed by the Disciplinary Authority. It is to be noted that the learned Member has set aside the penalty imposed against all the three Megha 9/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc employees by holding that the Petitioner-Bank could impose any one of the punishments provided under clause 19.6 of the Bipartite Settlement. The learned Member held that the punishment imposed on these employees is illegal, disproportionate, unjustified, malafied and contrary to the rules and has therefore, set aside the punishment with direction to the Petitioner-Bank to impose any one penalty under clause 19.6 of the Bipartite Settlement.
15. In the light of above, the question which falls for determination is whether the Respondent No.2 was justified in interfering with the penalty imposed by the Disciplinary Authority against the three employees and further in giving directions to the Petitioner-Bank to impose only one form of penalty against these employees.
16. In this regard it would be advantageous to refer to the decision of Apex Court in Chief Executive Officer (supra) wherein the Apex Court has held as under:
"7.2....It is trite that Courts, while exercising their power of judicial review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not Megha 10/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc the function of the High Court to decide the same. It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/ employer is wholly disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes. 7.2.1. No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (See State of Jharkhand & Ors v. Kamal Prasad & Ors.[1])....."
17. In the instant case, the employees have been held guilty of gross misconduct. Clause 19.6 of Bipartite settlement dated 19.10.1966, which prescribes punishment for gross misconduct reads thus :-
"19.6 : An employee found guilty of gross misconduct may:
(a) be dismissed without notice; or
(b) be warned or censured, or have an adverse remark Megha 11/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc entered against him; or
(c) be fined; or
(d) have his increments stopped; or
(e) have his misconduct condoned & be merely discharged."
18. The learned Member of the Industrial Tribunal has held that the word "or" in clause 19.6 indicates that the Disciplinary Authority can impose any one form of the punishment under clause 19.6 of the Bipartite Settlement and that this is fortified by the fact that clause 19.9 clearly provides that -'a workman found guilty of misconduct, whether gross or minor, shall not be given more than one punishment in respect of any one charge.' The learned Member has held that the punishment imposed by the Disciplinary Authority is more than that stipulated under Clause 19.6.
19. It may be mentioned that in J. Jayalalitha Vs. Union of India (supra), the Apex Court has held that :-
"The dictionary meaning of the word "or" is "a particle used to connect words, phrases or classes representing alternatives". The word "or" which is a conjunction, is normally used to the purpose of joining alternatives and also to join rephrasing of the same thing but at times to Megha 12/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc mean "and" also. Alternatives need not always be mutually exclusive. Moreover, the word "or" does not stand in isolation and, therefore, it will not be proper to ascribe to it the meaning which is not consistent with the context of Section 3. It is a matter of common knowledge that the word "or" is at times used to join terms when either one or the other or both are indicated."
20. Reverting to the matter in hand, Clause 19.6 prescribes various forms of punishments which can be imposed in case of gross misconduct. The word 'or' after each of the sub clauses (a) to (d) of clause 19.6 merely suggests that this clause provides for five alternative forms of punishments. This clause does not indicate that the Disciplinary Authority has to necessarily choose only one of the forms of the punishment regardless of the number and nature of charges. There is no such embargo in clause 19.6. The only restriction as spelt out in clause 19.9 is that there cannot be more than one punishment for any one charge. This clause too does not restrict the powers of the Disciplinary Authority to impose distinct punishment for distinct charges. In other words, there is no restriction on the powers of the Disciplinary Authority to impose more than one form of punishment in case the charged employee is involved in committing several acts of misconduct.
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21. Now coming to the facts of the case, S.R. Natu was served with charge memorandum dated 12.3.1992 wherein five distinct charges were levelled against him. The Disciplinary Authority had imposed separate punishment for each of the charges, held to be proved. The cumulative effect of the punishment imposed on the employee Natu was reduction of his Basic Pay to the next lower stage for a period of two years, withdrawal of special assistance allowance permanently and stoppage of first stagnation increment for a period of six months.
22. Shri D.K. Bagwe was issued charge memorandum for committing three distinct charges and was awarded separate punishment for each of these charges held to be proved. the cumulative effect of the punishment imposed on Shri D.K. Bagwe was stoppage of 3 annual increment permanently and permanent withdrawal of Cashier's allowance.
23. Shri S.S. Samant was issued charge memorandum for committing three distinct acts of misconduct and he too was awarded separate penalty in respect of each of the misconduct. The cumulative Megha 14/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc effect of the punishment was stoppage of three annual increments permanently and censure.
24. A plain perusal of the orders dated 12.4.1993 and 13.4.1993 clearly indicate that the Disciplinary Authority had not imposed more than one punishment in respect of any one charge and had thus not contravened clause 19.9 of the Bipartite settlement. The charges levelled against these employees were in respect of acts committed on different dates, which constitute distinct misconducts specified in clause 19.5 of Bipartite Settlement. The Disciplinary Authority has held these employees guilty of such distinct misconducts and has imposed separate punishments in respect of each misconduct. There being no embargo on imposing separate punishment, the action of the Petitioner Bank in imposing such penalty is not in contravention of any statutory rules or regulations or other order governing the parties for each misconduct. Hence, imposition of such penalty is neither illegal nor in contravention of Bipartite settlement.
25. It is further to be noted that the learned Member has held that the penalty is disproportionate and malafide. The learned Member has not ascribed any reasons for recording such findings.
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Suffice it to say that findings which are not supported by any reasons are wholly unsustainable in law. It is pertinent to note that the Petitioner is a Banking Institution and by their disorderly behaviour the charged employees had brought the business of the Petitioner-Bank to standstill. The employees had breached the office discipline and their acts and omissions were prejudicial to the interest of the Petitioner- Bank. Upon considering the nature and gravity of the misconduct and also the fact that there were no extenuating circumstances the Disciplinary Authority had imposed punishment, cumulative effect of which was stoppage of increment. The punishment imposed on the three employees therefore, cannot be said to be disproportionate, much less shockingly disproportionate. The Bank had already taken lenient view in the matter. The learned Member was therefore, not justified in interfering with the punishment imposed by the Disciplinary Authority on the said three employees. The award to that extent is unjustified, illegal, excessive and is therefore, liable to be set aside.
26. Under the circumstances and in view of discussion supra, the writ petition is allowed. The impugned award to the extent of setting aside the punishment imposed on the employees/workmen is Megha 16/17 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:59:38 ::: 212_wp_3904_2001.doc hereby quashed and set aside. Consequently further directions given to the Petitioner-Bank to grant to the employees all monetary benefits, which were stopped or not extended and to impose only one penalty against each of the employees are also hereby quashed and set aside.
(ANUJA PRABHUDESSAI, J.)
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