IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.99 OF 2008 WRIT PETITION NO.99 OF 2008 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 AND AND WRIT PETITION NO.1305 OF 2008 WRIT PETITION NO.1305 OF 2008 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.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. DATE : 11th June, 2008 DATE : 11th June, 2008 DATE : 11th June, 2008 P.C. P.C. 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 :2: 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 :3: 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 :4: 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 2006 II CLR Page 959 2006 II CLR Page 959 (General Secretary, South Indian Cashew Factories (General Secretary, South Indian Cashew Factories (General Secretary, South Indian Cashew Factories Workers’ Union Vs. Managing Director, Kerala State Workers’ Union Vs. Managing Director, Kerala State Workers’ Union Vs. Managing Director, Kerala State Cashew Development Corporation Ltd. and Others) Cashew Development Corporation Ltd. and Others) 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 :5: 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. :6: 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. :7: 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)