Bombay High Court
Bank Of India & Anr vs Bank Of India Staff Union & Anr on 12 September, 2017
Bench: Anuja Prabhudessai
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:-
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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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