THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.13326 OF 2003 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 20.1.2003 passed by the Central Government Industrial Tribunal – cum – Labour Court, Hyderabad in L.C.I.D. No.251/2001 in confirming the order of compulsory retirement issued by the Chief Manager & Disciplinary Authority in Lr.No.239/20/V/159 dated 12.3.2001, the petitioner who was working as Clerk in the Andhra Bank prior to the order dated 12.3.2001, filed the present writ petition. 3. The brief facts of the case as stated by the petitioner in the affidavit filed in support of the writ petition are that the petitioner was appointed as clerk on 12.11.1983 in the 1st respondent – Andhra Bank and posted to Kadim, East Godavari District and subsequently, he was transferred to Hanmakonda. While so, the petitioner’s father availed crop loan during August, 1990. Initially, he could not repay the loan amount due to severe drought and naxals (extremists) problem. However, the crop loan of Rs.21,529/- was repaid on 23.6.1999. A scheme “Deposit Insurance Credit Guarantee Corporation”, was floated, where under the loans granted to the priority scheme are liable for write off, if the outstanding balance is less than Rs.25,000/-. The case of the petitioner is that it is the responsibility of the Branch Manager or the Rural Development Officer to prepare the statement, who are eligible for write off. The Rural Development Officer has prepared the list of non-performing accounts below Rs.25,000/-, which are eligible for write off. As per the instructions, the list comprising of 57 persons was prepared and the same was forwarded to the Zonal Office by the Branch Manager vide letter dated 22.11.1997. The further case of the petitioner is that as per the procedure, he was asked to fill up the forms in accordance with the statements already submitted for writing off the loans vide letter dated 22.11.997 and the forms were certified by the R.D.O. and the Branch Manager. While so, an anonymous complaint was made against the petitioner with the charges that (1) the petitioner claimed an amount of Rs.1,17,390/- towards medical expenses (by pass surgery) incurred in connection with the hospitalization scheme to his father and an amount of Rs.77,000/- was reimbursed; (2) that the father of the petitioner was sanctioned a crop loan of Rs.15,000/- on 6.11.1990 and for the purpose of writing off the loan liability of Rs.21,529-55, the petitioner has misrepresented that his father is deceased and; (3) that the petitioner has submitted an application for LFC on 24.10.1997 and included his parents, when his father was drawing a pension of Rs.3,000/- per month and as per the existing settlement, the employee could not claim his parents as depends if the monthly income is Rs.1,500/-. Based on the said complaint, the petitioner was issued a notice and the petitioner submitted detailed explanation dated 15.10.1999 bringing to the notice of the authorities that his father is drawing freedom fighters’ pension and the same is not an income. He denied the other charges. Not being satisfied with the explanation, an enquiry officer was appointed and he conducted enquiry and submitted report stating that the charges 1 and 3 are not proved and only charge no.2 is proved, where under the petitioner has stated that his father is deceased. Based on the findings of the enquiry officer, the petitioner was issued letter dated 17.1.2001 proposing to impose punishment of compulsory retirement and he was directed to appear in person before the Chief Manager for personal hearing. Petitioner submitted detailed explanation. By order dated 12.3.2001, the Chief Manager, Disciplinary Authority, imposed the proposed punishment of compulsory retirement from service. Aggrieved by the same, the petitioner preferred appeal, and by order dated 9.7.2001, the Assistant General Manager (I.R.) & Appellate Authority, has confirmed the punishment imposed by the Disciplinary authority. Challenging the same, the petitioner raised industrial dispute before the Tribunal in L.C.I.D.No.251/2001and sought for setting aside the impugned order of punishment and consequently direct reinstatement into service with all consequential benefits. 4. The respondent – Bank filed counter and while reiterating the charges framed against the petitioner, stated that the petitioner’s father was drawing more than Rs.3,000/- per month from January, 1998 and he cannot be considered as dependant on the petitioner as per the provisions of the bipartite settlement for the purpose of hospitalization scheme. It is further stated that the petitioner has represented that his father has died by writing off the loan, when his father was very much alive, and further he claimed medical reimbursement. It is stated that the petitioner included his father as dependant on whim, when he is getting monthly income of Rs.3,000/-. With these averments, the Bank sought for dismissal of the case and for confirmation of the punishment of compulsory retirement imposed on the petitioner. 5. Considering the material on record, the Tribunal confirmed the order of compulsory retirement and challenging the same, the present writ petition is filed. 6. The learned counsel for the petitioner contended that the freedom fighter’s pension is not an income and it is a ‘dole’ and hence the father of the petitioner can be treated as dependent on him. Relying on the decision in I.T.O. vs. C.M. PANT[1] he contended that the freedom fighters’ pension granted by the Government of India, from 24.9.1984 cannot be treated as income, since it is not derived from any gainful employment and it is only a ‘dole’ granted in appreciation and recognition for the sacrifices made by them during the course of freedom struggle. The learned counsel further relying on the appellate order of the Deputy Commissioner of Income Tax dated 28.3.1998 in Appeal No.IT/W-1/2/96-97 contended that the freedom fighters’ pension is not an ‘income’ and is not chargeable to income tax. Therefore, his contention is that the father of the petitioner can be shown as dependant on him and hence he is entitled to claim medical reimbursement and also L.F.C. 7. He submitted that the father of the petitioner availed crop loan of Rs.15,000/- on 6.8.1990 and as per the insurance scheme floated by the bank, for claiming the benefit of writing off the loan, the borrower need not be a deceased and if the outstanding loan amount in the non-performing account is less than Rs.25,000/-, the said account holder is entitled for the benefit of writing off. With regard to mentioning of the word ‘deceased’, the learned counsel contended that it is the responsibility of the Branch Manager or Rural Development Officer to prepare the statement and the Rural Development Officer has prepared the list of non-performing accounts below Rs.25,000/- who are eligible for write off and subsequently the petitioner was asked to complete the same as per the proforma and further as per the instructions, the list comprising of 57 members was prepared and the same was forwarded to the Zonal Office by letter dated 22.11.1997. It is stated that even otherwise, the father of the petitioner has repaid the outstanding amount of Rs.21,529/-on 23.6.1999. With regard to claiming of medical reimbursement, he contended that as the freedom fighter’s pension is not an income, he is entitled to claim medical reimbursement. However, as the management asked to repay the amount, the petitioner paid the amount. 8. In the alternative he contended that for the minor lapse of mentioning that the father of the petitioner is deceased, without any mens rea and without any ulterior motive or unlawful gain, the petitioner cannot be imposed with the harsh punishment of compulsory retirement. He submitted that the petitioner has unblemished service and his entire family is dependent on him and in view of these circumstances, he contended that the punishment of compulsory retirement from service, is shockingly disproportionate and the same is liable to be set aside. 9. He further contended that the Tribunal by not considering these aspects and without exercising the jurisdiction under Section 11-A of the Industrial Disputes Act, 1947, confirmed the impugned punishment and the same is liable to be set aside. 10. On the other hand, the learned counsel appearing for the respondent – Bank supporting the impugned award, sought for dismissal of the writ petition. 11. In order to appreciate the rival contentions, it is necessary to first note the charges that are leveled against the petitioner and the findings thereon. The Articles of charge are as under: “It is alleged that while you were working as Clerk-Telex Operator at Hanamkonda Branch, Warangal, you have claimed an amount of Rs.1,19,890/- towards medical expenditure incurred in connection with the illness of your father Sri P.Sanjeeva Reddy on a false statement that your father is dependent on you. Your father was sanctioned a Crop loan of Rs.15,000/- on 6.8.1990. For the purpose of writing off liability of Rs.21,529-55 outstanding in the said account, you had misrepresented the fact that your father had deceased. Thus you had failed to discharge your duties with utmost integrity, diligence and devotion. You had also failed to protect the interests of the Bank. Your fraudulent acts resulted in wrongful loss of Rs.98,529/- to the Bank and wrongful gain of like amount to you as detailed hereunder: Medical reimbursement -- Rs.77,000-00 Crop loan – Written Off -- Rs.21,529-00 Thus you have committed gross misconduct as per para 19.5(J) of the Bipartite Settlement. The following is the statement of allegations in support of the above Articles of charge. 1. While working as Clerk-Telex Operator at Hanamkonda Branch, during March, 1998 you had claimed an amount of Rs.1,09,390/- and Rs.10,500/- towards medical reimbursement under hospitalization scheme to your father Sri P.Sanjeeva Reddy claiming him as your dependant. An amount of Rs.70,000/- and Rs.7,000/- was reimbursed to you on 7.4.1998 and 9.4.1998 against the claim of Rs.1,09,390/- and Rs.10,500/-, respectively. It is observed that your father Sri P.Sanjeeva Reddy, is a holder of Central Political Pension Payment Order No.8555/Pol/Central and Drawing pension of Rs.3,210/- from Sub-Treasury Office, Ghanpur. The pension was originally sanctioned for Rs.3,000/- and is being drawn from SBH, Ghanpur Branch through an account opened with them on 2.2.1998. As your father is drawing a pension of more than Rs.3,000/- per month from January, 1998, he cannot be considered as dependant on you as per provisions of Bipartite Settlement for the purpose of hospitalization scheme. Thus, you have suppressed this information and made a false statement to claim medical reimbursement with an ulterior motive to defraud the Bank to a tune of Rs.77,000/-. 2. Sri P.Sanjeeva Reddy, your father was sanctioned a Crop Loan of Rs.15,000/- on 6.8.1990 bearing no.206/89/90/65 on the co-obligation of Sri Challa Pratap Reddy at our Hanmkonda Branch. You have in your own hand writing prepared form N1 15 dated 6.1.1998 seeking permission from zonal office, Warangal, to write off the crop loan to Sri P.Sanjeeva Reddy, who is your father, while mentioning therein that the borrower (Sri P.Sanjeeva Reddy) is deceased. Whereas you have in March, 1998 claimed medical reimbursement under hospitalization scheme to your father Sri P.Sanjeeva Reddy, claiming him as your dependent. Thus the information furnished by you in the proposal for writing off of his crop loan stating that the borrower is deceased is not true and was forwarded with an ulterior motive only to facilitate writing off the liability in the crop loan account. On the other hand, you have in your application dated 24.10.1997 for sanction of LFC stated that the said Sri P.Sanjeeva Reddy, your father, claimed to be your dependant, even though you have filled NI 15, dated 6.1.1998 stating that he is deceased. During that period you were working in the Advances Department at Hanamkonda Branch and you had prepared the write off proposal pertaining to your father and abused your official position for pecuniary gain. 3. You had submitted an application dated 24.10.1997 for sanction of LFC and included your parents as dependants, even though your father Sri P.Sanjeeva Reddy is a pensioner, drawing a pension of Rs.3,000/- per month. As per the existing provisions of Bipartite Settlement, if the monthly income of the parents of the employee exceeds Rs.1,500/- per month, the employee should not claim his parents as dependents. As such, you had suppressed the information with regard to pension of your father and claimed the tickets for LFC of your parents.” 12. From the above extracted portion it could be seen that the case of the bank is that the father of the petitioner is drawing freedom fighters’ pension of Rs.3,000/- per month since January, 1998 and as per the Bipartite Settlement, if the monthly income of the parents exceeds Rs.1,500/-, he cannot be shown as dependant. But the petitioner by showing his father as dependant on him, claimed medical reimbursement and L.F.C. and further to claim write off of crop loan, he has shown his father as ‘deceased’. With these allegations, the petitioner was issued charge sheet. 13. At this juncture it is also necessary to note the findings of the enquiry officer as under: “After a careful analysis of both the arguments and evidence brought before me both oral and documentary, I conclude 1. that it is established that the CSE has made an application for LFC including his parents Mr.P.Sanjeeva Reddy and Mrs. P.Sujatha as dependents and the same was sanctioned by Zonal Office. 2. I cannot agree with the argument of the defence that the pension of Mr.Sanjeeva Reddy as on 4.10.1997 was Rs.1,500/- as an examination of the PPO (DEX 13) revealed that the pension was enhanced from Rs.1,500/- to Rs.3,000/- from 15.8.1997. Hence, it is also established that Mr.Sanjeeva Reddy CSE’s father was drawing a Freedom fighters pension of Rs.3,000/- as on 24.10.97. 3. However, it could not be established whether freedom fighter’s pension can be taken to arrive at a conclusion whether he is a dependant or not as Management Exhibit MEX 25 page 8 it is mentioned monthly income and it could not be established by the Management whether Freedom fighters pension is an income or not.” 14. In view of the above rival contentions, and the findings of the enquiry officer, it is necessary to examine whether the respondent – Bank is justified in imposing the punishment of compulsory retirement from service on the petitioner and whether the Tribunal is justifying in confirming the punishment imposed by the respondent – Bank and whether the Tribunal is justified in not exercising the jurisdiction under Section 11-A of the Industrial Disputes Act, 1947? 15. In order to appreciate the above issues, it is necessary to briefly refer to the charges on the petitioner and the findings of the enquiry officer. The charges against the petitioner are that though his father is getting freedom fighters’ pension of Rs.3,000/- per month, showing him as his dependant, he claimed medical reimbursement and leave fare concession. Secondly, though his father is alive, the petitioner showing him as deceased with his own handwriting in the relevant loan waiver forms of the bank, sought to write of the loan as per the insurance scheme. 16. From the material on record and from the findings of the enquiry officer, which are extracted above, the bank failed to establish that the freedom fighters’ pension is an ‘income’. The learned counsel for the petitioner also vehemently contended that the freedom fighters’ pension is like a ‘dole’ and it cannot be taken as an income. In the decision reported in ITO v. C.M. PANT (DELHI) (1 supra) the Income Tax Appellate Tribunal, Delhi Bench, considering the issue whether the political pension can be assessed for levying income tax, held that it is a ‘dole’ and not an ‘income’ and cannot be assessed for income tax, as it is received for not rendering any services to the State and it is in the form of a gift and is a casual payment and naming it as ‘pension’ is not at all material. The relevant portion of the judgment is extracted as under for ready reference: “4. A reading of the above sections., viz., Sections 2(24), 2(45) and 5 along with the provisions of Section 4, the charging section, makes it patently clear that an amount to be subjected to charge of income-tax must fit in within these definitions, but the facts of the case, with which we are seized of do not warrant the interference that the amount can be labeled as ‘income’, much less, ‘total income’, hence, it is not chargeable to tax in the hands of the assessee. Admittedly, the position in law is that all receipts by an assessee cannot necessarily be deemed to be the income of the assessee for the purposes of income-tax and the question which any particular receipt is income or not depends on the nature of the receipt and the true scope and effect of the relevant taxing provision. The income tax authorities cannot assess all receipts, since they can assess only those receipts which amount to ‘income’. The legal position, as such, boils down to the fact that before a receipt can be assessed as ‘income’, the authorities must find it to be an ‘income’ as they cannot find it so until and unless there be material to justify their stand. In the case of the assessee, the amount received by him is for not services to the State of Uttar Pradesh, much less, to the Government of India. Accordingly, the amount is a ‘dole’ i.e., a receipt without any consideration and since it is a ‘dole’, it cannot be said to have any source. The payment depends entirely on the whims of the State of Uttar Pradesh, hence, the receipt cannot be termed to be an ‘income’ and, accordingly, cannot be brought into the mischief of the provisions of the Act, for being charged to Tax. If any authority is required for the proposition, then Mehboob Productions (P.) Ltd. v. CIT [1977] 106 ITR 758 (Bom.,) Lal Chand Gopal Das v. CIT [1963]48 ITR 324 (All.) at p.336 and Siddhartha Publications (P.) Ltd. v. CIT [1981]129 ITR 603 (Delhi) are in point. 5. The net result is that the revenue fails and the receipt of amount by the assessee from the State of Utter Pradesh as political pensioner is held not to be falling within the ambit of the word ‘income’ as envisaged in the Act. The appeals fails. Per Shri K.C.Srivastava, Accountant Member – While agreeing with the conclusion recorded by the learned Judicial Member, I would add that the token payment made to the assessee was with the sole purpose of honouring a freedom fighter. He had no legal right to receive it and it was not a ‘pension’ for any service rendered. Naming it as a ‘pension’ is not at all material. It was a gift by the State Government. Thus, this was a casual payment. A voluntary payment made without consideration, even if it is paid continuously over a period, is not a income if it depends solely on the whim or sweet will of the prayer. It was held by the Bombay High Court in the case of H.H. Maharani Shri Vijayakuv`erba Saheb of Morri v. CIT [1963] 49 ITR 594 at p. 605 that such voluntary payment which cannot be traced to any source but only to the whim of the donor cannot be considered as income. That being the legal position it is hoped that as a policy no effort should be made to bring such small payments made to the freedom fighters to tax.” 17. From the above judgment it is clear that the amount paid to freedom fighters cannot be taken as ‘income’ and no income tax can be levied on such amount. 18. In the present case, there is no dispute that the amount received by the father of the petitioner is a freedom fighters’ pension and as held in the above judgment, it is only a ‘dole’, as the recipient of the amount will not have any legal right to receive the same and it is only in the form of gift by the Government to honour freedom fighters. Therefore, it is clear that it cannot be treated as an ‘income’. 19. Before the enquiry officer, the Bank could not establish that the freedom fighters’ pension is an income. Therefore, the enquiry officer has rightly recorded the findings that “However, it could not be established whether freedom fighters pension can be taken to arrive at a conclusion whether he is a dependant or not as Management Exhibit MEX 25page 8 it is mentioned monthly income and it could not be established by the Management whether Freedom Fighters pension is an income or not.” 20. The only thing that the bank could establish is that the father of the petitioner is receiving an amount of Rs.3,000/- per month. The Bipartite settlement contemplates that if the monthly income of the parents of the employee exceeds Rs.1,500/-, the employee should not claim his parents as dependents. In the present case, the Bank could not establish before the enquiry officer that the freedom fighters’ pension received by the father of the petitioner is an ‘income’. Further as per the decision, the freedom fighter’s pension is given to honour the freedom fighter, and it is a form of gift by the State and the freedom fighters will not have any legal right over the said amount, in other words, it is only a casual payment. In these circumstances, I am of the view that the findings of the enquiry officer that the Bank could not establish that the freedom fighters pension is an ‘income’, is based on proper appreciation of the material on record. 21. But from a perusal of the second show cause notice dated 10.11.1999 and the report of the disciplinary authority and the impugned order of compulsory retirement dated 9.7.2001, it could be seen that the Bank without establishing that the pension of the freedom fighter is an ‘income’, concluded that the petitioner has suppressed the fact that his father is receiving the freedom fighters pension of Rs.3,000/- and hence he cannot be taken as a dependant. This conclusion is based on mere conjectures and surmises and without considering the material evidence on record. The Bank got carried away mainly with this circumstance, while imposing the punishment of compulsory retirement. The Tribunal has not considered this aspect. And as noted above, at the cost of repetition, the amount received by the father of the petitioner, can only be taken as a ‘dole’ and it cannot be taken as a monthly income out of any gainful employment or by any legal right. 22. The other charge that is proved against the petitioner is that he mentioned his father as ‘deceased’ to avail the benefit of write off of the crop loan. The contention of the petitioner is that as per the scheme ‘Deposit Insurance Credit Guarantee Corporation’, the crop loans were eligible to be write off, if the outstanding balance is less than Rs.25,000/-. The outstanding balance in the crop loan of the father of the petitioner is Rs.15,000/-. Therefore, as per the said scheme, the father of the petitioner is fully eligible for claiming the benefit of write off of the crop loan. Along with the material papers, the petitioner has also produced the copy of Lr.No.239/45/7809/18880 dated 15.12.1997 issued by the Assistant General Manager, of the Andhra Bank Zonal Office, Warangal to all the branches in the Zone, where under the guidelines for write off of the non-performing loan account, were given and a perusal of the said letter indicates that for claiming the write off, the non-performing account shall be below Rs.25,000/- and in the present case, the case of the petitioner is that his father could not cultivate the land due to naxals problem and that the outstanding balance was only Rs.15,000/-. Further, the petitioner in his explanation, has accepted that the mentioning of his father as ‘deceased’ is a clerical mistake and sought to excuse the same on humanitarian grounds. The aspect whether the father of the