1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1972 OF 2009 Osmanabad District Central Co-operative Bank Limited ...Petitioner Versus Venkatesh s/o Bapurao Kulkarni ...Respondent ..... Mr. Ravindra Nirmal h/f Mr. V.D.Salunke, advocate for the petitioner ..... CORAM: S. S. SHINDE, J. DATED: 11TH AUGUST, 2009 PER COURT:- 1 This writ petition takes exception to the final judgment and award dated 19.9.2008 passed by the learned Member, Industrial Court, Latur in complaint (ULP) No.388 of 2004. 2 It is the case of the petitioner herein that the respondent herein was in the employment of the petitioner and he was working as Branch Manager. He was about to retire on 7.1.2003, Therefore, as a usual practice followed by the petitioner, a letter dated 30.11.2002 was issued to the respondent communicating that he is due to retire on 7.1.2003. It is further case of the petitioner that in the meanwhile, the 2 petitioner noticed some irregularities and illegalities at the instance of the respondent, while working as a Branch Manager at Terna Nagar and Dhoki Branches, in the transaction of IBP account. Two inquiry Officers were appointed to enquire into the matter and submitted report on or before 26.12.2002. The Inquiry Officers submitted their reports on 31.12.2002 and pointed out that the amount of Rs.15,64,978/- should be recovered from the respondent. On 1.1.2003, the respondent was placed under suspension. On 18.8.2003 the auditor Class-II Co-operative Societies Osmanabad conducted audit and directed the respondent to pay an amount of Rs.3,64,925/- pertaining to the irregularities and illegalities into IBP transactions. It is further case of the petitioner that the respondent therein failed to repay and admitted the charges up to some extent. It is further case of the petitioner that on the basis of the Inquiry report submitted by the Inquiry Officers and the audit conducted by the auditor, Co-operative Societies Osmanabad, dues towards the retirement benefits were withheld and action was taken on the basis of the inquiry report as well as audit report. 3 Being aggrieved, the respondent preferred complaint (ULP) No. 388 of 2004 before the learned Member, Industrial Court, Latur and 3 prayed for refund of Rs.1,60,000/- and also prayed for direction to the petitioner to release the terminal dues. 4 The petitioner appeared in the said proceeding and resisted the contention of the respondents. The learned Member, Industrial Court allowed the complaint filed by the respondent and directed the petitioner to release an amount of Rs.1,60,000/- and terminal dues of the respondent with interest @ Rs.12% p.a. Hence, this writ petition. 5 Learned counsel appearing for the petitioner submitted that the letter was written by the petitioner bank to the respondent dated 30.11.2002 was mere communication intimating him that he is going to retire on 7.1.2008 and the same was not retirement order as such. Learned counsel invited my attention to page 18 which is latter dated 30.11.2002. Learned counsel further submitted that on 17.12.2002 Officer from Bank of the petitioner was appointed for conducting enquiry and on 26.12.2002 he has submitted his report, which indicates that due to illegalities and irregularities committed by the respondent, the Bank has suffered huge financial loss more than Rs.15.00 lacs. He further invited my attention to the fact that on 1.1.2003 the respondent was put under suspension. It is further submitted that the auditor has further conducted enquiry on 18.8.2003 in which reply was filed by the respondent and the auditor has also come to the conclusion that due to illegalities and irregularities 4 committed by the respondent herein the bank has suffered financial loss. The auditor opined that an amount of Rs.3,64,000/- to be recovered from the respondent. Learned counsel invited my attention to the reply filed by the respondent therein on 8.9.2003 before the auditor. Learned counsel further submitted that the provident fund amount is paid to the respondent and gratuity and leave encasement has been withheld. Learned counsel submitted that the petitioner was never allowed to retire by the petitioner bank and he is not retired on the due date and he was put under suspension. He therefore, has posed question for consideration that if employees put under suspension prior to his date of retirement whether it can be said that the employer has allowed him to retire. The second question which is posed by the learned counsel for consideration is when the employee admitted guilt whether it is necessary to initiate enquiry against him. Therefore, learned counsel submitted that there was no interference called by the Industrial Court in the action which was initiated on the basis of the enquiry report of the Inquiry Officer and Auditor. 6 Learned counsel appearing for the respondent has invited my attention to the reply filed before this Court as well as the findings recorded by the Industrial Court and submitted that no interference is called for in this case under Article 227 of the Constitution of India. It is further submitted that there was no proper enquiry, no opportunity was given to the respondent herein. No charge sheet was issued. 5 Therefore, on the basis of such enquiry, no action could have been taken to withhold the retirement benefits of the respondent. Learned counsel further invited my attention to the page 32 and 33 of the compilation which is letter written by respondent to the auditor and submitted that on careful reading of this letter, it cannot be said that the respondent herein has admitted that he has committed illegality and irregularities. Learned counsel, therefore, would submit that there is no substance in the contention of the counsel for the petitioner that the respondent has admitted his guilt. 7 After hearing learned counsel for the petitioner and learned counsel appearing for the respondent and after careful perusal of the judgment and award passed by the Industrial Court, in my considered view, no interference is called for under writ jurisdiction. Though the learned counsel appearing for the petitioner contended that the two enquiry Officers were appointed. On query he is unable to reply that under which provisions the said enquiry Officers were appointed and whether those officers were competent to hold the enquiry. Apart from this, nothing has been brought on record to show that the enquiry officers who were appointed by the Bank have conducted enquiry after giving proper opportunity to the respondents herein to put forth his case. It is also not in dispute that no charge sheet was issued to the respondent herein. Though learned counsel for the petitioner submitted that officer from accounts department was appointed as 6 enquiry Officer, he is unable to point out under which provision said Officer was appointed., Though learned counsel for the petitioner has raised point that the respondent herein was put under suspension prior to his date of retirement and therefore, it cannot be said that he was allowed to retire by the employer bank on due date of his retirement, however, nothing has been brought on record to show that the respondent was not allowed to retire on the date fixed for retirement. It is also pertinent to note that the petitioners herein have paid provident fund amount to the respondent herein on the basis that the respondent is retired from service. Therefore, it cannot be said that the respondent employee was not allowed to retire by the employer. It is also pertinent to note that if at all the respondent was placed under suspension, there is nothing on record to show that suspension allowance was paid to him. Apart from this, the procedure adopted by the petitioner bank to appoint enquiry officer, not to issue any charge sheet and not to afford any opportunity to the respondent is unknown to law. The further contention of the counsel for the petitioner that reply was filed by the respondent before the auditor admitting his guilt is required to be rejected on perusal of pages 32 and 33 of the compilation, which is the letter addressed by the respondent herein to the auditor. 8 The Member, Industrial Court in para 7 has referred to the reported judgment of the Hon’ble Supreme Court of India in the case of Bhagirathi Jena s Board of Directors, O.S.F.C. And Ors. (1999 I 7 CLR 1074) and has observed that a disciplinary enquiry cannot be continued by the employer after superannuation of the employee, and the employer therefore, do not have any authority to make any reduction in the retirement benefits payable to such employee, in absence of any provisions in the staff regulation enabling the employer to continue with the departmental enquiry even after his retirement. It is not in dispute that there are no staff regulation enabling the present petitioner also to continue with the departmental enquiry even after his retirement as conceded by the learned counsel for the petitioner. In para 12 of the judgment, the learned Member, Industrial Court held that the petitioner bank was under obligation to conduct departmental enquiry before holding the complainant guilty for the charges levelled against him. Admittedly, the respondent is retired from service without initiating any disciplinary action against him. On careful perusal of the findings recorded by the Member, Industrial Court, Latur, I do not find any perversity or any error apparent on the face of record or the Tribunal has exceeded its jurisdiction and therefore, under Article 227 of the Constitution and no case is made out for interference. Writ petition is dismissed. 8 9 Learned counsel for the respondent, upon query of the Court, on instructions from his client, makes a statement that if this Court feels that interest @ 12% p.a. as awarded by the Industrial Court is exorbitant, in that case, the same can be reduced to 10% from 12%. 10. Taking into consideration over all view of the matter, the judgment and award passed by the Industrial Court is confirmed except direction No.4, which is modified as under:- “4. The Respondent-bank further directed to release all terminal dues of the complainant within a period of one month from the date of passing of this order, within a simple interest @ 10% per annum.” 11. It is made clear that the judgment and award passed by the Industrial Court, is fully confirmed except the clause 4 which is modified as mentioned above. The writ petition is devoid of any merits and the same is dismissed. *****