1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3998 OF 2008 ACE Co-operative Bank Ltd. ..Petitioner. Vs. Narendra Balkrishna Pimputkar ..Respondent. .... Mr. Burhan V. Bukhari for the Petitioner. Mr. Narendra B. Pimputkar – Respondent present in person. .... CORAM: DR. D.Y. CHANDRACHUD, J. 8th December, 2008. P.C. : 1. Rule, by consent made returnable forthwith. The Respondent waives service. With the consent of Counsel appearing for the Petitioner and the Respondent who is appearing in person and at their request, the matter is taken up for hearing and final disposal. 2. The Petitioner is a Salary Earners Co-operative Bank registered under the Maharashtra Co-operative Societies Act, 1960. The Respondent was engaged as a Senior Officer. On 9th January, 1999 a charge-sheet was issued to the Respondent and he was 2 suspended pending a disciplinary enquiry. A disciplinary proceeding was convened in which the Respondent was allowed to be defended by an advocate. Apprehending a termination of his services, the Respondent filed a complaint of unfair labour practices (Complaint ULP 533 of 1999) . On 25th October, 1999 the Labour Court passed an interim order restraining the Petitioner from taking action against the Respondent relying on the enquiry report, until further orders. The matter was carried in revision. On 19th July, 2001 the Industrial Court modified the order passed by the Labour Court and permitted the Petitioner to award a punishment in accordance with the Standing Orders if the charges were proved “as per the findings of the Enquiry Officer” excluding a punishment of discharge, dismissal and termination. The Enquiry Officer, it may be noted had submitted a report on 28th February, 2000 holding the Respondent guilty of the charges levelled against him. Complaint (ULP) 533 of 1999 was dismissed for want of prosecution on 4th March, 2002. The Respondent instituted another complaint of unfair labour practices, Complaint (ULP) 831 of 2001 in the meantime on 23rd October, 2001 apprehending that he may be reverted to a lower post. In that 3 complaint, an application was moved for interim relief which was dismissed on 11th March, 2002. The disciplinary authority passed an order reverting the Respondent from the post of Senior Officer to the post of Officer. Complaint (ULP) 831 of 2001 was amended to challenge the order of reversion. 3. By its order dated 5th May, 2004 the Industrial Court held that the punishment of demotion was not one of the punishments which could permissibly be awarded under the certified Standing Orders. Having observed this, the Industrial Court held the Petitioner guilty of unfair labour practices under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and directed the Petitioner to pay to the Respondent wages and allowances applicable to the post of a Senior Officer from 10th April, 2002 until 28th December, 2002. The Court has been informed that on 28th December, 2002 the Respondent was dismissed from service on account of another act of alleged misconduct. Consequently, the direction which has been passed by the Industrial Court operates for the period between 10th April, 2002 4 when the Respondent was demoted until 28th December, 2002 when he was dismissed from service. 4. The order of the Industrial Court was impugned by the Petitioner in a Petition under Article 226 (Writ Petition 2190 of 2006). On 29th September, 2006 the Petition was allowed to be withdrawn with liberty reserved to the Petitioner to move the Industrial Court in its review jurisdiction. The Petitioner, pursuant to the liberty granted by this Court filed a review application before the Industrial Court. The application was dismissed on 3rd March, 2008. These proceedings have accordingly been instituted in order to challenge the orders passed by the Industrial Court on 5th May, 2004 and 3rd March, 2008. 5. On behalf of the Petitioner it has been submitted that the Industrial Court having come to the conclusion that the punishment that was imposed on the Respondent was not in accordance with the certified Standing Orders, the only appropriate order to pass would have been to remit the proceedings back to the disciplinary authority 5 for passing an appropriate order of punishment in accordance with the certified Standing Orders. For the purposes of these proceedings, Counsel appearing for the Petitioner has proceeded on the basis that the Industrial Court was correct in holding that the certified Standing Orders do not provide for demotion to a lower post as one of the stated penalties. That aspect of the findings is not pressed at the hearing of these proceedings. However, learned counsel submitted that even so the Industrial Court ought not to have straight away directed that the Respondent be paid his wages and allowances in the post of Senior Officer and the appropriate direction would have been to allow the disciplinary authority to issue a fresh order of penalty in accordance with law. 6. On the other hand, it has been submitted on behalf of the Respondent that the Petitioner, when the earlier petition came up before this Court, sought to contend that the certified Standing Orders did envisage a penalty of demotion to a lower post and it was on that ground that leave was sought to prefer a review application before the Industrial Court. Before the Industrial Court it transpired that the 6 certified Standing Orders upon which reliance was placed by the Petitioner did not hold the field any more and consequently it was apparent that the demotion to a lower post was not a stipulated penalty. In these circumstances, it was urged that it would not be appropriate at this stage to permit the employer to pass a fresh order of penalty. 7. As noted earlier, the Industrial Court has interfered with the penalty of demotion that was imposed by the disciplinary authority only on the ground that it was not in accordance with the penalties stipulated in the certified Standing Orders. Even if the Industrial Court were to hold thus, the employer could not have been precluded from passing a fresh order in accordance with the penalties stipulated in the certified Standing Orders. This indeed, is the law laid down by the Supreme Court in State Bank of India v. T.J. Paul1 (at para 19). In that case, a gradation of punishments was fixed by the rules of the Bank of Cochin and the punishment of removal was not one of the stipulated punishments. The Supreme Court held that the setting aside of the penalty of removal by the High Court and the relief of 1 1999 II CLR 8. 7 consequential benefits was sustained but the matter would have to go back to the competent authority for considering the imposition of one of the other punishments in accordance with the rules. The Industrial Court should have followed the same position in law by permitting the Petitioner to impose a penalty in accordance with the certified Standing Orders. Insofar as the earlier Writ Petition is concerned, it is evident from the order passed by the Learned Single Judge of this Court on 29th September, 2006 that the Petition was permitted to be withdrawn with liberty to approach the Industrial Court in its review jurisdiction. All contentions were expressly kept open. The validity of the order passed by the management therefore had not attained finality. The Industrial Court dismissed the review application only on the ground that it had no jurisdiction to review its own order. The correctness of the order passed by the Industrial Court on 5th May, 2004 and the legality of the punishment imposed by the employer has therefore not attained finality. 8. For the aforesaid reasons, the Petition will have to be allowed in part in terms of the following directions : 8 i) Inasmuch as during the course of the hearing, Counsel appearing for the Petitioner has not pressed the challenge to the finding of the Industrial Court that a penalty of demotion was not in accordance with the certified Standing Orders, that finding of the Industrial Court is not disturbed; ii) The final order of the Industrial Court is modified by permitting the Petitioner to impose a punishment in accordance with the certified Standing Orders. Before doing so the disciplinary authority shall furnish an opportunity to the Respondent of making his representation in that behalf; iii) In the event that the Respondent is aggrieved by the order of penalty that is imposed upon him, it will be open to him to take recourse to such remedies as are open in law for challenging the legality of the action of the Petitioner. 9 The Petition shall be disposed of in terms of the aforesaid directions. There shall be no order as to costs. *****