C.W.P No.12301 of 2002 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.12301 of 2002 (O&M) Date of Decision: 22 .07.2009 Union Bank of India .....Petitioner Versus Central Government Industrial Tribunal-cum-Labour Court and another ...Respondents Present: Mr. B.B. Bagga, Advocate for the petitioner. Mr. D.S. Patwalia, Advocate with Mr. Alok Jagga, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K. KANNAN J. I. Scope 1. The validity of the enquiry before the Enquiry Officer and his competence to act as a disciplinary authority and inflict the punishment of dismissal are the points that fall for consideration under the writ petition. II. The imputation of charge, nature of 2. The matter relates to conduct of enquiry of staff in a public sector bank. The workman had been appointed as Watchman/Guard on 05.10.1970 and promoted as a Cashier on 01.01.1984. When he was working as Cashier at Mandi Gobindgarh Branch, he was served with the memorandum for refusing to do normal duties assigned to him, abusing officials and using unparliamentary language, tampering with the attendance register, misbehaving with Branch Manager on C.W.P No.12301 of 2002 (O&M) -2- previous occasions and habitually using unparliamentary language and inciting other officials to misbehave with seniors. III. Express authority to hold enquiry and inflict punishment to the same officer 3. Sh. Rajesh Arora, Deputy Manager (Personnel) had been appointed as the Enquiry Officer-cum-Disciplinary Authority by the Bank-Management purporting to act under authority through a Circular No.2309 dated 25.05.1981 and the authorization given to him by memorandum dated 15.10.1990. Another charge-sheet had also been served on him over an alleged misconduct of uttering slogans at the main gate of the management branch, abusing and indulging in other acts, which were not in the interest of management, man- handling and acts of omission and commission reported against him while working at Mandi Gobindgarh Branch. The enquiry led to a finding of guilt by the Enquiry officer and as he was acting also as Disciplinary Authority, he proposed punishment of dismissal from service for major misconducts proved and for proven minor misconducts, lesser punishments of stoppage of increments etc. The workman, although was given an opportunity of personal hearing with reference to the proposed punishment, failed to avail the opportunity that culminated in the final order passed on 15.04.1991 punishing him by dismissal from services with Bank for proved gross misconduct of riotous, disorderly and indecent behaviour at the premises of the Bank and other lesser punishments for lesser charges. IV. Labour Court's findings-charges not established as well as the enquiry vitiated 4. After the order was passed, a representation had been given C.W.P No.12301 of 2002 (O&M) -3- by the workman to the I.R. Department of the Bank at Bombay alleging that the enquiry was not in consonance with the principles of natural justice. The Department counselled him that he might appeal to the Appellate Authority against the order but the workman did not avail such remedy as well. A dispute raised led to a reference for an adjudication before the Central Government Industrial Tribunal-cum- Labour Court. By the award dated 16.04.2002, the Tribunal returned a finding that the enquiry was vitiated and the charges had not been proved, essentially on the ground that the punishment imposed upon the workman was made by a person who was junior in rank to the appointing authority and hence, the punishment of dismissal from service and two other punishments for stoppage of three increments with cumulative effect were set aside. However, in view of the fact that the workman had already attained the age of superannuation, reinstatement was not possible and therefore, the workman was found entitled to the salary from the date of dismissal from service to the date of retirement along with interest @ 12% per annum from the date when it fell due. V. Grounds of challenge justifying order of punishment by management 5. The award is challenged before this Court by the management on the ground that there had been valid authority to the Enquiry officer to act also as Disciplinary Authority by virtue of the authorization given by the Chairman of the Bank and as per the relevant rules governing conduct of domestic enquiry as laid down under the Bipartite Settlement entered into between the management and the workmen's union. According to learned counsel, Sh. Bagga C.W.P No.12301 of 2002 (O&M) -4- appearing for the Management-Bank, the normal concept applied in service jurisprudence relating to civil services could not be invoked to govern cases of Bank employees who are controlled by the provisions of Banking Regulation Act and Specific Service Rules. 5. The learned counsel appearing on behalf of the management referred to staff Circular No.2309 (Annexure P-10) that contained particular reference empowering the Disciplinary Authority to also hold the enquiry himself. The relevant Circular contained inter alia: "The Disciplinary Authority herein may himself hold an enquiry or direct any officer of the Bank to hold an enquiry and another officer to represent the Management's case. Having so directed, the Disciplinary Authority may in his discretion at any stage transfer holding of the enquiry from one Officer of the Bank to another and/or transfer the task of representing the Management's case from one Management Representative to another. 6. He also referred to the schedule attached to the Circular, which sets out the details of Disciplinary Authority and the Appellate Authority for persons working in branch offices and extension counters as follows: Branch/ Extension Counter Branch Manager under whom the employee is working/Authority above the Branch Manager/Assistant Superintendent in Zonal Office/ Authority above Asstt. Superintendent in Zonal Office/Personnel Officer/ Superintendents in the Department of Personnel at Central Office/Authority above Superintendent in the Department of Personnel at Central Office. Assistant General Manager of the concerned zone/ Authority above the Assistant General Manager. According to him, by virtue of the Circular, the Disciplinary C.W.P No.12301 of 2002 (O&M) -5- Authority was also competent to constitute himself as an Enquiry Officer. VI. In fact, finding that Dy. Manager was duly authorized 7. Learned counsel appearing for the workman, Sh. D.S. Patwalia was quick in his feet to point out that even as per the reference in schedule, the person that was competent to act as a Disciplinary Authority was the Branch Manager himself under whom the employees were working and the classes of persons that were indicated in the schedule did not include the Deputy Manager who acted as a Disciplinary Authority-cum-Enquiry Officer for the workman in the instant case. According to him, therefore, even as per the document filed by the management, the Circular had not authorized the Deputy Manager to act as a Disciplinary Authority. This argument found again a counter-argument by learned counsel appearing for the petitioner that even without reference to the Circular, there had been a memorandum issued by the Managing Director on 15.10.1990 (Annexure P-11) that specifically authorized the Deputy Manager to act as a Disciplinary Authority with power to enquire into the charges levelled against the workman and award appropriate punishment. The memorandum reads as follows: "No.CO:IRD:AS:MISC:407:9884:90 Dated 15.10.1990 Sh. Rajesh Arora has been authorised as Disciplinary Authority and has been given the right to take disciplinary action against the working staff members of the bank on the basis of his being on the post of Deputy Manager according to the notice issued by Managing C.W.P No.12301 of 2002 (O&M) -6- Director dated 28.05.1981 in the Staff Circular letter No.2309. According to above said appointment or authorisation, Sh. Rajesh Arora is requested to inquire into the allegations levelled against Sh. Sohan Singh (Clerk/Accountant) Mandi Gobindgarh Branch in Charge Sheet No.CO:IRD:AS:MISC:407/90 dated 15.10.1990. Sh. Rajesh Arora is informed that Sh. Mohan Lal, Executive Officer, Enquiry Division, Chandigarh has been appointed as Management Representative if after the enquiry charges against Sh. Sohan Singh are established then Sh. Sohan Singh time to time according to the various provisions of para 19 of the Bipartite Settlement can impose proper punishment according to his discretion. It is expected from Rajesh Arora that he should complete the enquiry within three months of its receipt and send the montly report of progress of enquiry in first week of every month. Sd/- Managing Director" 8. This document was again adversely commented by the counsel appearing for the workman that the memorandum made reference to the Circular No.2309 and while the Circular did not grant the Deputy Manager the power to hold the enquiry, such a power granted under the Memorandum was in excess of the power provided under the Circular. The response by the counsel for the management was by pointing out that the Memorandum must be understood as C.W.P No.12301 of 2002 (O&M) -7- emanating from the power vested with the Managing Director sui juris and need not be confined as any power available to him through a circular and the reference to the circular itself was unnecessary. While there may not be any disqualification for a person whatever rank he held to be an Enquiry Officer, the question whether power of a Disciplinary Authority could be exercised by a person below the rank of the Appointing Authority assumes significance, for it is this inference about the competence of the Disciplinary Authority that has clouded the perception of the Labour Court. VII. Disciplinary Authority, could be a person below the rank of Appointing Authority for service not governed under Article 311, when so authorized or when regulations allow 9. The Conduct and Disciplinary Rules are regulated in public sector banks through Bipartite Settlements that began with Sastry Award published in 1953. The Award laid down complete service rules of the bank employees followed by the provisions of Desai Award in 1962. The provisions of Sastri Award/Desai Award continued to be modified/amended (amended from time to time through Bipartite Settlements) Clause 19 to 19.16 detail the disciplinary procedures. There is no clause that delimits the power of management to appoint a disciplinary authority or any prescription that such a disciplinary authority cannot himself be an enquiry officer. Again, there is no express prohibitions against the disciplinary authority being lower in rank to the appointing authority. 10. Learned counsel appearing for the petitioner referred me to Chapter 33 of the Banking Employees' Service Rules and Disciplinary Action (Baba Bholanath Book Stores, 2002 Edition), the chapter deals C.W.P No.12301 of 2002 (O&M) -8- with the disciplinary action and procedure therefor. It details various misconducts. I have already referred to the fact that the issue before us was not merely whether the charges had been proved and whether the acts attributed to him constitute misconduct. The whole focus was only on the competence of the officer to hold the enquiry and his power to inflict the punishment. I have gone through the provisions which include reference to the power of the Disciplinary Authority to either appoint an Enquiry Officer or himself conduct the enquiry. If the Managing Director of the Bank who is also described as a Disciplinary Authority under the Bank Circular had also conducted the enquiry, there could have been no dispute. The power extends to the Disciplinary Authority to also appoint an Enquiry Officer and if he or his higher official had appointed a person below his rank to be the Enquiry Officer, there would still not be a problem for the relevent rules framed after Bipartite Agreement provides "Disciplinary Authority, on receipt of the report from the Enquiry Officer, should carefully go through the entire file..... It is obligatory on the part of the Disciplinary Authority to send a copy of the enquiry report/findings to a charged employee asking for his comments, if any on the enquiry, report....." Note 3 at page 228 states that "where enquiry is conducted by the Disciplinary Authority himself, there is no need to send a copy of the enquiry report to the charged employee. The Note specifies that as per the mandatory provision in Clause 19.12(a) of the First Bipartite Settlement, as modified, the concerned employee shall be given a personal hearing as regards the nature of the proposed punishment when charges are proved/substantiated." C.W.P No.12301 of 2002 (O&M) -9- None of these rules refers to a situation of whether a Disciplinary Authority could be a person lower in rank than the Appointing Authority. As pointed out already the issue before us is not whether the particular person Sh. Arora had the competence to act as an Enquiry Officer. The point is whether he could also be a Disciplinary Authority and as a person who was not himself the Appointing Authority, as a person who was below the rank of the Appointing Authority whether he could be constituted as a Disciplinary Authority as well. 11. Learned counsel appearing for the management refers to decisions relating to the nature and constitution of the domestic enquiry and the powers under it. Srirangam Janopkara Bank Ltd. Vs. Rangrajan and another 1964 I LLJ 221 lays down that there is no bar for an employer to hold the domestic enquiry and justify the dismissal on merit. This answers one limb of objection whether the enquiry officer can also prescribe punishment and holds that if the enquiry officer is also a disciplinary authority, he can. Management of Orissa Industries Vs. State of Orissa 1974 Lab & IC 54 is an authority to the effect that a Manager who had the powers of removal of employees will not lose the power merely because he was a witness before the Tribunal. Awdesh Kumar Bhatnagar Vs. The Gwalior Rayon Silk Mfg. Weaving Ltd. and another 1972 LLJ 143 (SC) is a decision of the Hon'ble Supreme Court where it was held that the authority given to an officer by the company in accordance with Standing Order, would extend to the invalidity of action of removal from service by such officer. In this case the Memorandum issued C.W.P No.12301 of 2002 (O&M) -10- empowers the Enquiry Officer, who is also the Disciplinary Authority, to inflict a punishment of removal from service. The Hon'ble Supreme Court dealt with the case of an order of discharge, which had been signed by the Secretary of the Mills who had the power to appoint and dismiss an employee. The authorization to hold the enquiry and dismissal also specifically provided the power to the Secretary to pass the order of discharge. VIII. Service in bank is not civil service 12. The other series of decisions deal with the question whether the post in a bank could be viewed as civil service to obtain the protection under Article 311 of the Indian Constitution. The decision in Prathma Bank Vs. Vijay Kumar Goyal and another AIR 1989 SC 1977 holds that Bank employee does not hold a civil post. G.S. Shambhani Vs. State Bank of India, Ahmedabad (1984) II LLJ 322 (Guj) and P. Chrishopa Jobej Vs. Indian Bank (1979) II LLJ 274 (Mad) hold that employee of banks and/or bodies cannot be taken as servants of the Union or that of the States. Aggarwal S.L. Vs. Hindustan Steel General Manager AIR 1970 SC 1150 is an authority for the proposition that an employee of a statutory authority is not a public servant. Union Bank of India Vs. Gopala Krishaniah 1995 Supp (4) SCC 81 lays down that an employee of a statutory authority is not a public servant. All these authorities are relied on by learned counsel for the Management-Bank to state that a workman in a Bank cannot treat himself as a public servant entitled to the procedural mandates of Article 311 of the Constitution. The interdict against the disciplinary authority not to be below the rank of an appointing C.W.P No.12301 of 2002 (O&M) -11- authority is a constitutional mandate that can be effective only as regards civil service. The provision is no universal doctrine in labour or service jurisprudence or shown to enunciate a principle at common law. The Bipartite Agreement does not itself create such a restriction. If the appointing authority specifically authorises a named individual, in this case a person holding the post of Deputy Manager to act as the Disciplinary Authority, a restriction into his authority could not be made by reference to the analogy under Article 311(i) of the Constitution. IX. Authorities that hold principles of Article 311 as inapplicable to non-civil service 13. The issue whether the Rules under Article 311 could be applied to employees of the bank, who are governed by their own Service Rules and Regulations had been considered in State Bank of India Vs. S. Vijay Kumar 1990 4 SCC 481 where the Hon'ble Supreme Court held that bank officer is not entitled to protection under Article 311 (i) against dismissal by an authority subordinate to that by which he was appointed. A still later judgment of the Hon'ble Supreme Court in Satinder Singh Arora Vs. State Bank of Patiala and others 1992 Supp 2 SCC 224 where following the judgment in State Bank of India's case, the Hon'ble Supreme Court held that Article 311 does not apply to bank employees. This was followed in decisions of other High Court also in T. Rajgopalan Vs. State Industries Promotion Corporation of Tamil Nadu Ltd. and others 1997 I LLJ 517 Mad); Kailash Nath Gupta Vs. Enquiry Officer, Allahabad Bank 1997 3 LLJ 453; S.B. Algoanka Vs. State Bank of India Manu/MH/04445/1994; Bishambar Lal Kapur Vs. C.W.P No.12301 of 2002 (O&M) -12- Allahabad Bank Manu/DE/0663/2002; M.D. Canara Bank Vs. Ramji Shukla Manu/UP/0855/1998:(1998) 2 UPLBEC 1244. I have already extracted the specific power granted by the Managing Director which was the appointing authority to the Deputy Manager, specifically empowering him to act as a Disciplinary Authority and also award appropriate punishment. The competency of the Enquiry officer and the Disciplinary Authority cannot, therefore, be challenged. X. Principle that Enquiry Officer cannot propose punishment cannot apply when the Disciplinary Authority is himself the Enquiry Officer. 14. Learned counsel appearing for the workman referred to several decisions. He relied on a decision in State of Uttaranchal & Ors. Vs. Kharak Singh 2008 (4) SCT 21 to the effect that an Enquiry Officer who also recommended severe punishment of dismissal was acting beyond his limit and mere reliance on such a recommendation by the Disciplinary Authority was vitiated. Another decision of this Hon'ble Court in The Tangaur Coop. Credit and Service Society Ltd., Tangaur Distt. Kurukshetra Vs. The Joint Secretary to Govt. of Haryana, Department of Cooperation, Chandigarh 2001 (4) SCT 96 that an Enquiry Officer who gave a report against the delinquent also participates in a meeting where resolution for termination of services was passed, the proceedings of the meeting shall be held to be vitiated. These two decisions have no applicability to the cases where the Enquiry Officer is also the Disciplinary Authority. We have already found that the issue is not whether the Disciplinary Authority could also be an Enquiry Officer or vice versa. Such a power was C.W.P No.12301 of 2002 (O&M) -13- granted under the Circular and we have held that there is nothing inherently wrong in clothing the power to hold an enquiry to the Disciplinary Authority himself. 15. Director General, ESI and another Vs. T. Abdul Razak (1996) 4 SCC 708 examined the validity of conferment of power on the Director General to specify by general or special order an authority could also act as Disciplinary Authority holding that the Director General could delegate his powers or duties under the rules and regulations, held that a Director General who had some powers delegated to him under resolution of the Corporation did not have the power to further sub-delegate on the principles of delegatus non potest delegare. This decision also has no applicability to a case where it was nobody's case that the power of the Disciplinary Authority who under the Circular was the Branch Manager had delegated power to the Deputy Manager. Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy (1995) 1 SCC 332 held that in so far as initiation of enquiry by an officer subordinate to the Appointing Authority is concerned, it is well settled that it is unobjectionable. The initiation of an enquiry can be by an officer subordinate tothe Appointing Authority. Only the dismissal/removal would not be by an authority subordinate tothe Appointing Authority. This decision does not again answer the question we have, since employment in the case before Hon'ble Supreme Court was 'civil service' to which employee having the protection under Article 311 was clearly applicable. XI. Proof of misconduct clearly established in inquiry- Labour Court had no justification to interfere C.W.P No.12301 of 2002 (O&M) -14- 16. The Enquiry Officer-cum-Disciplinary Authority has dealt with in extenso the impropriety committed by the workman and by consideration of the appropriate evidence had come to a conclusion that the workman was guilty of gross misconduct of riotous, disorderely and indecent behaviour at the premises of the bank and he was also guilty of minor misconduct of committing of nuisance at the premises of the bank and failing to show proper consideration, courtesy and attention towards the officers or other employees of the bank. After finding him guilty of the misconduct on the question of punishment, he has examined such type of incidents brought bad name to the institution and being a senior employee of the branch, the workman joined with the members of the public and shouted slogans against the bank and bank employees thereby attracting the attention of the general public which were the acts prejudicial to the interest of the bank. Bringing issues to the streets and behaving in a violent and indecent manner was not a solution to any problem and the behaviour of the workman ill-behoved his status and subverted orderly conduct that was expected of a workman. The punishment awarded was dismissal from service for proven gross misconduct and stoppage of three increments with cumulative effect for willful insubordination, disobedience of the lawful and reasonable orders of the superiors. The Labour Court clouded, as it was by a fundamental assumption that the Disciplinary Authority did not have a power to impose a punishment to be an officer below the rank of the Appointing Authority went on to make sweeping observation that the evidence of witnesses were contradictory and the report of the Enquiry Officer C.W.P No.12301 of 2002 (O&M) -15- was not acceptable. No point of contradiction was ever elicited in the award. None of the reasonings of the Enquiry Officer has been put to any test by judicial appraisal and reasoning. The Labour Court did not appear to have considered any materials for coming to conclusion that the Enquiry Officer's findings were either perverse or incorrect. The Labour Court ought not to have interfered, under such circumstances, where the findings of the Enquiry Officer-cum-Disciplinary Authority were appropriate and had considered all the relevant facts. XII. Conclusion 17. The award of the Labour is set aside and the writ petition is allowed confirming the punishment as imposed by the Disciplinary Authority. The workman shall have no remedy as sought for by him through a reference to the Labour Court. No costs. (K. KANNAN) JUDGE July 22, 2009 Pankaj*