Ramdas Somaji Nikam vs Indian Bank And Ors.
2001 Latest Caselaw 350 Bom

JUDGMENT

1. Rule. Respondents waive service. Rule made returnable forthwith.

2. Petitioner was initially employed as a Clerk in 1978 and was promoted as Clerk-cum-Shroff in the first respondent Bank in the year 1989. Respondent Nos. 2, 3 and 4 are the Assistant General Manager, Deputy General Manager and Branch Manager respectively of respondent No. 1.

3. This is an unfortunate case for more than one reason. The respondents have shown neither respect nor regard for the earlier orders and judgments of the Industrial Tribunal, this Court and the Apex Court. Upholding the order of the Industrial Tribunal, reinstating the petitioner with full back wages, this Court by an order and judgment dated March 23, 2000 passed strictures against the respondents describing their conduct as utterly inhuman and callous. The Apex Court dismissed the respondents Special Leave Petition filed against the said judgment. The petitioner who has already suffered enormous hardship and been dragged through a prolonged and unnecessary litigation is sought to be proceeded against once again for the same alleged acts.

4. The relevant facts are as follows.

5. The petitioner joined the services of respondent No. 1 as a peon in 1976. He was later promoted as a Clerk-cum-Shroff.

6. On March 26, 1993, the petitioner's daughter met with a major accident. As there was nobody in his family to take care of his daughter the petitioner was required to attend to her. On account of the same and financial difficulties suffered by him, the petitioner suffered a nervous breakdown in April, 1993. The petitioner's difficulties and traumatic condition continued till August, 1993. From time to time the petitioner informed respondent No. 1 his inability to attend work for the time being.

7. On August 18, 1993, when the petitioner reported for work, respondent No. 1 did not permit him to resume his duties despite a medical certificate produced by him. The Chief Officer of respondent No. 1 informed the petitioner that his services had come to an end from July 26, 1993 as per the provisions of a Bipartite Settlement and that an order dated August 12, 1993 to the effect that his: employment came to a voluntary cessation had already been issued from July 26, 1993. It is an admitted position that at that time respondent No. 1 had not issued any charge-sheet or conducted any enquiry for the petitioner's absence. The respondents rejected the petitioner's request to withdraw this action against him.

8. The Central Government by its order dated January 2, 1997 referred the following dispute between the petitioner and respondent No. 1 to the Industrial Tribunal for adjudication.

"Whether the action of the management of Indian Bank, Maker Towers, Cuffe Parade, Bombay, in treating the services of Shri Ramdas S. Nikam, Cashier-cum-Clerk Sr. No. 26406 as voluntary cessation of employment w.e.f. July 26, 1993, vide Clause No. 16 of the Bipartite Settlement of April 10, 1989 is justified or not? If not to what relief the workmen is entitled for"?

9. The rival contentions of the petitioner and respondent No. 1 were considered in detail by the Industrial Tribunal. The Industrial Tribunal observed that the petitioner had been sending letters to respondent No. 1 expressing his inability to attend work on account of the aforesaid facts. The Tribunal did not accept the Bank's case that it had not received the notices. Respondent No. 1 did not even examine any witness to establish its case. Respondent No. 1 alleged that when the petitioner absented himself it sent a telegram advising him to report for duty immediately failing which it stated that the matter would be viewed seriously; that by a letter dated April 29, 1993 it called upon the petitioner to report for duty immediately and that by a letter dated June 26, 1993 it stated that the petitioner was absent unauthorisedly and instructed him to report for duty immediately within 30 days of the receipt of that letter. The Industrial Tribunal came to the conclusion that there was no valid service of the aforesaid correspondence and another letter dated August 12, 1993 and that respondent No. 1 had failed to show that it made any attempts to serve the letters on the petitioner. On the other hand, the Tribunal accepted the evidence led by the petitioner including that he had not shifted his residence. The Industrial Tribunal held that the decision of respondent No. 1 that the petitioners had voluntarily opted for cessation of employment as per the Bipartite Settlement was not justified. The Industrial Tribunal also observed that removing the name of the petitioner from the rolls of the establishment without a charge or enquiry or notice or retrenchment compensation was not in accordance with the provisions of Section 25-F of the Industrial -Disputes Act. In the circumstances it was held that the action of respondent No. 1 was not justified and that the petitioner was entitled to an order of reinstatement with back wages and other benefits.

10. Being aggrieved by the said order, the first respondent challenged the same in Writ Petition No. 298 of 2000. A learned single Judge (S.S. nIJJAR, J.) in a detailed judgment dated March 23, 2000 analysed the facts and confirmed the order of the Industrial Tribunal.

The learned single Judge observed that he did not find anything perverse or even remotely wrong with the finding of the Industrial Tribunal. While dismissing the writ petition, the learned Judge made the following observations.

"4. I am of the considered opinion that the approach adopted by the Bank in the present case was utterly inhuman. It has been categorically stated by the workman who belongs to the lowest category of the work force that he had suffered a nervous breakdown. This nervous breakdown was brought about by the accident which has been suffered by his daughter. Instead of. showing some sympathy to the workman, the Bank now callously makes a request to the Court to remand the matter back to the Tribunal to fill in the lacunae which may possibly have been left while leading evidence before the Tribunal. It has been admitted by the learned Counsel for the Bank that no charge-sheet was ever served upon the workman. About 20 years service of the workman is sought to be taken away without observing even the bare minimum rules of natural justice. This kind of hire and fire policy has been deprecated by the Supreme Court in a catena of judgments. The workman first having suffered financial hardship and then mental anguish, is now sought to be totally destroyed by rendering him unemployed".

The first respondent applied for a stay of the judgment which was rightly rejected by the learned Judge by observing as follows:

"I find no justification for the same. The poor workman who is only a Clerk has been victimised enough by abnormal circumstances as well as the circumstances brought about by the Bank".

11. Despite the aforesaid order the respondents did not implement the said Award. The petitioner was, therefore, constrained to file Contempt Petition No. 17 of 2000. By an order dated April 4, 2000 a learned single Judge of this Court D.K. dESHMUKH, J. recorded the statement of the learned counsel appearing on behalf of the respondent to the effect that if the respondent was not in a position to secure suitable orders from the Supreme Court within six weeks, the first respondent would fully implement the Award dated May 10, 1991. The learned Judge accepted the statement and in view thereof disposed of the contempt petition.

12. The Supreme Court by an order dated May 11, 2000 rejected the petition for Special Leave filed by the first respondent against the order dated March 23, 2000.

13. Ultimately having been left with no other choice, the respondents by its letter dated June 6,2000 informed the petitioner that he was reinstated as Clerk-cum-Shroff but stated that the same was without prejudice to initiate departmental proceedings against the petitioner for the reported unauthorised absence in terms of the provisions of the Bipartite Settlement. Admittedly nothing was done by the Bank thereafter, that is to say, nothing was done by the Bank till it found an opportunity to victimise the petitioner by the present impugned action.

As stated above, the petitioner had never been charge-sheeted. There has never been any allegations by the respondents that the petitioner had dishonestly absented himself from his duties. The petitioners limited ground for terminating his services was as per the provisions of the Bipartite Settlement. Even after June 6, 2000 the respondents did not make any allegations against the petitioner.

14. We are left to consider as to why the respondents have on December 23, 2000 i.e., over six months after reinstating the petitioner issued the impugned show cause notice alleging that the petitioner's absence was unauthorised and without intimation. The reason to our mind is obvious and established from the following facts.

15. As stated above, pursuant to the litigation culminating in the order of the Apex Court dated May 11, 2000 dismissing the respondent's Special Leave Petition, the petitioner was, by the respondent's letter dated June 6, 2000, reinstated in service.

16. On November 9, 2000, the first respondent announced the "Indian Bank Employees' Voluntary Retirement Scheme, 2000".

17. The petitioner on December 11, 2000 applied under the Voluntary Retirement] Scheme and submitted the necessary format duly filled in by him.

18. It was only thereafter and obviously with the intention of depriving the petitioner the benefit under the Voluntary Retirement Scheme that the respondent issued the impugned charge-sheet dated December 23, 2000. The said scheme was to remain open from November 27, 2000 to December 26, -2000 6nly. The scheme specifically stated that applications received upto December 26, 2000 alone will be taken up for consideration.

19. It is obvious, therefore, that the charge-sheet dated December 23, 2000 has been issued with a mala fide intention of victimising the petitioner by ultimately terminating the petitioners services and/or ensuring that the petitioner is unable to avail of the Voluntary Retirement Scheme. This-becomes further apparent by the first respondent's letter dated March 2, 2001 informing the petitioner that his application to retire under VRS. had not been accepted by the Competent Authority "as it does not conform to the eligibility criteria of the scheme". This was promptly followed by a notice dated March 9, 2001 from the respondents fixing March 21, 2001 as the date when it proposed to conduct the enquiry.

20. Justice NIJJAR had held that the action of the first respondent was utterly inhuman and that the petitioner had been victimised enough by respondent No. 1. We are constrained to observe that the respondents' present conduct is not only utterly inhuman but also mala fide. It appears that the officers of the first respondent have absolutely no concern for the welfare of the petitioner. They have ridden rough shod over the rights and life of the petitioner. It is unfortunate that a Nationalised Bank and its Officers i. e., the respondents have utterly disregarded and shown little respect for the earlier judgments of this Court and of the Supreme Court.

21. Mr. C.U. Singh, learned counsel appearing on behalf of the respondents placed reliance upon the judgment of the Supreme Court in the case of State of Assam and Anr. v. J.N. Biswas , to justify the impugned notice. This judgment does not apply to the facts of this case. The Supreme Court held that no rule of double jeopardy bars a subsequent proceeding if for some technical or other good ground the first enquiry or punishment or exoneration is found bad in law. In that event it was held that the second enquiry can be launched. However, the Supreme Court held that once a disciplinary case has closed and the official reinstated, the authorities cannot restart the exercise of other enquiry in the absence of specific power to review or revise, vested by the Rules. It was further held that such power to review or revise must be exercised if for some technical or other good ground, the first enquiry or punishment is found bad in law. In the present case the exoneration by the Industrial Tribunal was upheld by the learned single Judge of this Court. While doing so the learned Judge discussed the merits of the case and decided die same in the petitioner's favour. The Supreme Court in turn upheld the judgment of the learned single Judge. Thus, by no stretch of imagination, can it be said that the order of the Industrial Tribunal was. bad in law on any ground whatsoever. Mr. Singh also placed reliance upon a judgment of the Supreme Court in the case of Anand Narain Shukla v. State of Madhya Pradesh, . This judgment also does hot help the respondents. In that case certain charges were levelled against the appellant before the Supreme Court and in the enquiry the appellant was found guilty of some of the charges and he was reverted to a lower rank. The appellant challenged the order in a writ petition before the Madhya Pradesh High Court and succeeded on the ground that the enquiry held was not proper and legal. The appellant was, therefore, reinstated in his original post. Thereafter fresh proceedings were started on the basis of the same charges and the appellant was put under suspension. In the second proceedings he was found guilty of certain charges and he was again reverted. The appellant, therefore, filed a second writ petition challenging this order. The Supreme Court held that the earlier order was quashed on a technical ground. The Supreme Court therefore held that on merits the second enquiry could be held. This case is clearly distinguishable from the present case. The earlier order was not quashed on any technical ground. The matter was decided on merits. The learned single Judge in a detailed and well considered judgment came to the finding that there was nothing even remotely wrong with the findings of the Industrial Tribunal. The S.L.P. from this judgment was dismissed. Moreover, in the present case we have already held that the second proceedings are mala fide.

22. Mr. C.U. Singh, the learned Counsel appearing on behalf of the respondents also submitted that the respondents were entitled to issue the present show cause notice as the same did not deal with the right of the Bank under the bipartite agreement. He submitted that the earlier proceedings against the petitioner were adopted only in terms of the bipartite Settlement. He submitted that the show cause notice initiating a departmental enquiry was maintainable. This submission misses the point that in the present case the issues on merits were considered by the Industrial Tribunal and by Justice NIJJAR in detail. The respondent had the option initially by proceeding against the petitioner under the Bipartite Settlements and by way of a departmental enquiry. The respondent opted for the former. In these proceedings the case on merits was also considered in detail and the findings thereon were in the petitioner's favour. It would be not only pointless but unfair to put the petitioner through another gruelling round of litigation on questions that have already been decided.

23. For the reasons stated above, we have no hesitation in quashing and setting aside the order dated December 23, 2000 as being utterly mala fide. The petitioner's application for retirement under the V.R. Scheme was made in time. It was sought to be derailed with a view to victimising the petitioner by dishonestly and mala fide issuing the said notice dated December 23, 2000. The rejection of the petitioner's application under the V.R. Scheme is, therefore, also mala fide and illegal.

24. In the circumstances we pass the following order:

(a) Rule made absolute in terms of prayer Clauses (a), (b) and (c).

(b) Further respondent No. 1 is directed to consider the petitioner's application for VRS afresh in accordance with terms and conditions of VRS but without taking into consideration the time stipulated in the Scheme for applying thereunder and pass suitable orders within 8 weeks.

(c) The respondent shall pay to the petitioner costs of this petition fixed at Rs. 2,500/-.

Certified copy expedited.