The High Court dismissed writ petitions filed by Bank of Baroda and an employee contesting an industrial award regarding stoppage of increments and prospective release thereof, holding that interference was not warranted given the facts.
Writ petitions by Bank and employee dismissed; direction made prospective from October 1, 2006; ad-interim order declined.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.99 OF 2008
Bank of Baroda .. Petitioner
Versus
Mr.K.M.Salian & Anr. .. Respondents
Mr.N.M.Ganguli for the petitioner.
Mr.L.D’Souza alongwith Mr.V.M.Parkar for the
respondents.
AND
WRIT PETITION NO.1305 OF 2008
Mr.K.M.Salian & Anr. .. Petitioners
Versus
Bank of Baroda .. Respondent
Mr.L.D’Souza alongwith Mr.V.M.Parkar for the
petitioners.
Mr.N.M.Ganguli for the respondent.
CORAM: S.C.DHARMADHIKARIJ.
DATE : 11th June, 2008
P.C.
1. Heard learned counsel for both sides. Perused
the petitions and their annexures. The petitioner-Bank
of Baroda has filed this petition challenging the Award
made by the learned Presiding Officer CGIT, Mumbai dated
22nd September, 2006 in Reference No.CGIT-20 of 1999.
The award does not interfere with the action of the bank
and the punishment imposed upon the concerned employee.
However, the bank is aggrieved by the fact that the
learned Presiding Officer has directed that the stoppage
of increments, that is penalty imposed, shall be
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effective only till 01st October, 2006. Thereafter, the
increments which are so stopped shall be released in
favour of the workman. The increments were directed to
be released with effect from 01st October, 2006.
2. I have heard the learned counsel appearing for
the parties.
3. The learned Presiding Officer has noted that the
disciplinary authority has imposed punishment of
stoppage of three increments with cumulative effect.
This punishment has been imposed by order dated 11th
November, 1988. The acts of misconduct which have been
set out are enlisted in chargesheet dated 28th August,
1986. The Enquiry Officer was appointed on 28th August,
1986. The Enquiry Officer conducted the departmental
inquiry and submitted his findings dated 22nd March,
1988 to the authority namely Regional Manager (Mumbai
West Region). The Enquiry Officer has held that the
charges are proved. Thereafter, the employee was
informed by the notice dated 03rd September, 1988 of the
proposed punishment. He was also given an opportunity
of hearing on the proposed punishment. The employee
has, according to the disciplinary authority, not shown
any cause against the proposed punishment but requested
to reopen the inquiry. Considering the conduct of the
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employee the management/disciplinary authority imposed
the above punishment.
4. As far as the award goes, a perusal thereof would
indicate that after setting out the entire facts the
learned Presiding Officer has rejected all contentions
with regard to the fairness of the inquiry, findings of
the Enquiry Officer and the opportunity by the
disciplinary authority to show cause against proposed
punishment. The learned Presiding Officer has not found
any substance in the argument that the management was
biased against the workman or that he has been
victimised. In paragraph 14 of the award the learned
Presiding Officer has observed that there is rivalry in
two unions. There are some differences between workman
concerned and witness of the bank. In such
circumstances, the refusal of the employee/workman
concerned to accept delivery of letters amounts to clear
insubordination and therefore it is a misconduct. In
such circumstances, in paragraph 15 all contentions have
been rejected.
5. As far as the proposed punishment is concerned,
the learned Presiding Officer in paragraph 17 has
observed that the punishment of stoppage of three
increments with cumulative effect appears to be
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appropriate, just and proper considering the charges
which have been proved. Therefore, the punishment is
also not interfered with.
6. The only contention raised before me is that the
Presiding Officer could not have directed that the
punishment should not take effect with effect from 01st
October, 2006. There is no justification or authority
in law for such interference and conclusion. My
attention was invited to Section 11(A) of the Industrial
Disputes Act, 1947 and it is contended that the
discretion which is vested vide the said provision is
only when the case put forward is of discharge or
dismissal and not otherwise. Here the punishment
imposed is not of discharge or dismissal but stoppage of
increments. In such circumstances, Section 11(A) would
have no application. Reliance is placed upon a decision
of the Supreme Court reported in 2006 II CLR Page 959
(General Secretary, South Indian Cashew Factories
Workers’ Union Vs. Managing Director, Kerala State
Cashew Development Corporation Ltd. and Others).
7. On the other hand Mr.Ganguli appearing for the
workman states that the workman has filed the
cross-petition. He states that the Presiding Officer
should have interfered with the punishment which was
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wholly unwarranted. There is nothing in the entire
action which would indicate that the workman has
committed a gross misconduct. Therefore, depriving him
of the increments with cumulative effect was something
which the Court should have considered and instead of
subject direction, set aside the order of the
disciplinary authority, in its entirety.
8. In my view, both petitions deserve to be
dismissed. All that the learned Presiding Officer has
observed is that the incident is of 1986 and the penalty
was imposed in 1989. The workman is in service. He has
sought a reference which was placed before the Presiding
Officer and the same was being decided in 2006. The
reference was made by an order dated 26th February/04th
March, 1999. Considering the terms of the reference it
is clear that in the peculiar facts of this case power
was conferred in the Industrial Court to decide the
same. Such a plea was not raised before the Tribunal.
That apart, the learned Presiding Officer has acted
within the terms of the Reference. It is not the case
of the Bank that he has travelled beyond it. The terms
of Reference, in this peculiar case empower the Court to
go into all aspects including reasonableness and
proportionality of the punishment awarded. The terms
are agreed by both sides and remain unchallenged.
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9. This is not a case where any larger or wider
issues about the power of the Court below need be gone
into. The discretion exercised by the learned Presiding
Officer in the peculiar facts of this case need not be
interfered with. This is not as if this Court is
approving of the interference in all such matters.
Further, the learned Presiding Officer of CGIT was not
unmindful of the Section 11(A) and law laid down by the
Hon’ble Supreme Court. However, considering the
peculiar facts of the present case and that the employee
is due to retire in a year’s time, this is not a fit
case for interference in the extra-ordinary, equitable
and discretionary jurisdiction of this Court.
10. The employee had been deprived off the increments
from 1988 to 2006 and that is a substantial penalty
considering the Acts alleged and proved. Hence, Writ
Petition filed by the bank so also by the employee are
dismissed. However, it is clarified that the order of
CGIT is prospective and the increments are to be
released with effect from 01st October, 2006 and not
earlier. Therefore, there is no apprehension that the
order applies to the earlier period. The order is
maintained because after the incident there is no
incident or misconduct alleged in the past twenty years.
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The direction should not be treated as a precedent in
future.
11. Request is made to continue the ad-interim order
granted in the Writ Petition No.99 of 2008 filed by the
bank. I see no reason to continue the same as the
employee concerned has been deprived of the increments
already for nearly 20 years. In such circumstances,
request to continue the ad-interim order is declined.
Petitions dismissed. No costs.
(S.C.Dharmadhikari, J)
3 issues framed by the court
Whether Section 11(A) of the Industrial Disputes Act, 1947 applies to dismissal or discharge of appointment or not to cases other than discharge and dismissal.
Whether the High Court should exercise its extraordinary jurisdiction to interfere with the Presiding Officer CGIT on facts peculiar to the present case.
Whether the Presiding Officer had the power to direct release of stopped increments only prospectively from October 1, 2006.
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
Bank of Baroda
Bank of Baroda
Mr.K.M.Salian & Anr.
Mr.K.M.Salian & Anr.
S.C.Dharmadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S.C.Dharmadhikari
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