IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 3303 of 1993. Date of Decision : June 30, 2010. Chaman Lal through legal heirs ...... Petitioner . Versus. The Presiding Officer, Labour Court, U.T. Chandigarh, and another ..... Respondents . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. R.K. Dadwal, Advocate, for the petitioner. Ms. Jaishree Thakur, Advocate, for respondent No. 2/Cooperative Bank. AUGUSTINE GEORGE MASIH, J.. Through this writ petition the petitioner/Workman, who was working as a Peon with respondent No. 2/Punjab State Cooperative Bank Limited (hereinafter referred to as “the Cooperative Bank”) has challenged the Award dated 30.07.1992 (Annexure-P-7), passed by the Labour Court, U.T., Chandigarh, vide which the reference had been answered against the petitioner/Workman and in favour of the respondent No. 2/Cooperative Bank. Counsel for the petitioner contends that the petitioner was appointed as a Peon with the respondent/Cooperative Bank on 22.08.1969. The Appointing Authority of the petitioner was the Board of Directors of the respondent/Cooperative Bank under the Punjab Cooperative Financing Institutions Service Rules, 1958, (hereinafter referred to as “the Service C.W.P. No. 3303 of 1993. -2- Rules”). Thereafter, the Board of Directors appointed the petitioner as Peon- cum-Caretaker on 13.07.1976 and was given a special allowance of Rs. 30/- per month and the petitioner continued to work. The special allowance of Rs. 30/- per month was withdrawn by the Managing Director of the respondent/Cooperative Bank on 19.01.1978, which he was not authorised to do. The petitioner continued working with respondent/Cooperative Bank as Peon-cum-Caretaker till he was placed under suspension by the Managing Director on 18.09.1983. A chargesheet dated 24.09.1983 (Annexure-P-1) was served upon the petitioner by the Managing Director of the respondent/Cooperative Bank, according to which the petitioner was attached with the Deputy General Manager, vide Order dated 19.01.1978, but he was not found attending to his duties in that section where he was posted, but subsequently marked his attendance in the common cadre cell in an unauthorised manner from January, 1983 to May, 1983, without issuance of any order of his posting in that section. His presence in that Section’s attendance register was not verified by any officer/official incharge. The petitioner remained absent from duty during June and July, 1983, although, he marked his presence in the attendance register in the Managing Director’s staff with effect from August, 1983 onwards, but this was also unauthorised as no order of his posting in that section had been issued. The attendance register had not been verified by the Personal Assistant to the Managing Director nor did the petitioner attend his duty with Managing Director, thus, he had remained absent from duty. This chargesheet, counsel submits, is again without jurisdiction. He filed reply to the chargesheet. Being not satisfied with the reply, the Managing Director of the respondent/Cooperative Bank appointed an Enquiry Officer on 17.10.1983 C.W.P. No. 3303 of 1993. -3- and the Presenting Officer on 18.10.1983. The inquiry proceedings were held against the petitioner and he attended the inquiry proceedings on 07.12.1983 and thereafter on 15.12.1983, when the petitioner asked for certain documents from the Enquiry Officer, which were not supplied to him because of which the petitioner refused to participate in the inquiry proceedings. The inquiry proceedings were closed by recording the statement of the Presenting Officer, but no witness was examined. The petitioner was not given any opportunity to cross-examine the Presenting Officer. The Enquiry Officer presented his report to the Managing Director of the respondent/Cooperative Bank. A show cause notice dated 24.02.1984 (Annexure-P-11) was issued to the petitioner, to which he filed reply. The Managing Director of the respondent/Cooperative Bank, vide Order dated 12.04.1984 terminated the services of the petitioner (Annexure-R/1). Counsel for the petitioner contends that the chargesheet, inquiry proceedings and the order of termination passed by the Managing Director of the respondent/Cooperative Bank were without jurisdiction as it was in violation of Rules 5(i)(c), 6 and 9 of the Service Rules, according to which the Appointing Authority and the Punishing Authority was the Board of Directors, but none of the actions taken by the Managing Director of the respondent/Cooperative Bank had either been authorised by the Board of Directors or ex-post facto sanction was given thereto. His further contention is that the stand taken by respondent/Cooperative Bank before the Labour Court was that the Board of Directors had delegated its powers to the Managing Director, vide Resolution dated 30.09.1975 by the Executive Committee, which Resolution was confirmed by the Board of Directors, vide Resolution No. 2, dated 02.02.1976. He contends that as per the Act and the bye-laws, the tenure of the Board of Directors of the respondent/Cooperative C.W.P. No. 3303 of 1993. -4- Bank shall be three years from the date of its election. Similarly, the tenure of the Executive Committee shall be co-terminus with the Board of Directors. Any delegation of powers by the Executive Committee as well as by the Board of Directors will cease to operate after the expiry of tenure of the Board of Directors. He contends that since the tenure of the Board of Directors was three years in the Act, the delegation of powers by the Board of Directors, vide Resolution dated 02.02.1976 shall in any case not have its force when disciplinary proceedings were initiated against him in the year 1983. Thus, suspension, disciplinary proceedings and order of termination passed by the Managing Director of the respondent/Cooperative Bank cannot be said to be legal. While, attacking the inquiry report, he contends that the petitioner was not given full opportunity to defend himself and the principles of natural justice were violated as he was not supplied with the documents, which he had requested to be supplied, i.e., copies of pages of attendance register from January to May 1983, June and July, 1983, and copies of the orders issued by the respondent/Cooperative Bank, declaring him absent from duty. It was under these circumstances that the petitioner refused to participate in the inquiry proceedings under protest. No witnesses were examined by the Enquiry Officer and merely statement of the Presenting Officer was recorded. Thus, the allegations against the petitioner were not proved even before the Enquiry Officer and the report submitted by the Enquiry Officer is without any basis or evidence on record and cannot be made the basis for terminating the services of the petitioner. Even otherwise the inquiry report also does not hold the petitioner guilty of absence from duty, but only holds him guilty of marking his attendance in the common cadre cell and in the Managing Director’s staff attendance register, which was without any order of the Competent Authority. C.W.P. No. 3303 of 1993. -5- Further it was held that the petitioner did not mark his attendance for the months of June and July, 1983 in any of the attendance registers, thus, he remained absent from duty. He contends that the allegations against the petitioner were not proved by any positive evidence and the Enquiry Officer had proceeded to hold the petitioner guilty on presumption of his absence from duty for the months of June and July, 1983. He on this basis contends that the Award passed by the Labour Court cannot be sustained, wherein it has been held that the inquiry held was in accordance with law and the findings returned by the Enquiry Officer were based on no evidence. Counsel submits that the Labour Court had on erroneous conclusion held that since the petitioner had availed of an alternate remedy of filing an Appeal under Rule 10 of the Service Rules, which was dismissed in default, the reference would be barred by the principle of resjudicata. He contends that the statutory remedy availed of by the petitioner before the reference would not bar the remedy under the Industrial Disputes Act, 1947. He on this basis submits that the impugned Award dated 30.07.1992 (Annexure-P-7) deserves to be set aside and the petitioner be held entitled to reinstatement in service with all consequential benefits. On the other hand, counsel for respondent No. 2/Cooperative Bank submits that the challenge raised by the petitioner to the powers of the Managing Director for putting under suspension the petitioner and subsequent departmental proceedings and the order of termination being in violation of the Rules 6 and 9 of the Service Rules, is without any basis. She contends that the Managing Director of the respondent/Cooperative Bank has been delegated the powers to appoint, to punish and order institution of inquiry etc., by the Executive Committee in its meeting held on 30.09.1975 through Resolution No. 9, dated 30.09.1975. This Resolution was confirmed C.W.P. No. 3303 of 1993. -6- by the Board of Directors, vide Resolution No. 2, dated 02.02.1976. In any case, according to the bye-laws 47.19 and 47.20 of the Punjab State Cooperative Bank Limited, Chandigarh, (respondent/Cooperative Bank), the Managing Director shall have the power to appoint, transfer, suspend, chargesheet, reinstate, or punish employees of the Cooperative Bank below the rank of and including Junior Accountants. She contends that the challenge to the powers of the Managing Director is without any basis and, thus, cannot be sustained. To the contention of counsel for the petitioner that the delegation of powers to the Managing Director by the Board of Directors, vide Resolution dated 02.02.1976 shall cease to exist after the term of the Board of Directors ceases is against the very principle of the Cooperative Societies Act and the Rules framed thereunder. With the expiry of term of the Board of Directors, the Cooperative Societies do not cease to exist nor does the decision taken by the Board of Directors. They continue to hold the field till the same are modified, annulled, or rescinded. As regards the inquiry proceedings are concerned, counsel contends that the petitioner did not cooperate with the inquiry proceedings. The petitioner was offered to inspect the original attendance register, copies of which were demanded by the petitioner, which opportunity was not availed of by the petitioner and instead chose not to participate in the inquiry. Faced with this situation, the Enquiry Officer recorded the statement of the Presenting Officer, who submitted the documents in support of the allegations levelled against the petitioner and relying thereon held him guilty of the charge of absence from duty and unauthorisedly marking his attendance, the Enquiry Officer submitted the same, which was accepted by the Punishing Authority, leading to the passing of order of termination of the petitioner, which is in accordance with law and, therefore, does not call for any interference by this Court. She contends that C.W.P. No. 3303 of 1993. -7- the Enquiry Officer found the petitioner guilty of marking his attendance in an unauthorised way and without any order of the Competent Authority. The places, where the petitioner had unauthorisedly marked his attendance, was not verified by any official. In any case, the petitioner remained absent from duty during the months of June and July, 1983. She on this basis contends that the finding recorded by the Enquiry Officer, is fully justified and the reliance on the same by the Managing Director in terminating the service of the petitioner is in accordance with law. The Award passed by the Labour Court, thus, deserves to be upheld. I have heard counsel for the parties and have gone through the records of the case with their able assistance. The maintainability of the reference before the Labour Court needs to be dealt with first as per findings on issue No. 3 by the Labour Court. The finding returned by the Labour Court on issue No. 3 that as the petitioner had availed of his remedy of Appeal under Rule 10 of the Service Rules, which had been dismissed for non prosecution would attract principle of resjudicata dis-entitling the petitioner to claim his remedy under the Industrial Disputes Act, 1947, deserves to be set aside for the simple reason that the remedy under the Service Rules does not bar the remedy under the Industrial Disputes Act, 1947. Nothing has been brought on record, which would suggest that in case an Appeal is preferred under Rule 10 of the Service Rules, the remedy would be barred under the Industrial Disputes Act, 1947. It is the case of the respondent/Cooperative Bank that the Bank is not a State within the meaning of Article 12 of the Constitution of India. The remedy available under the Service Rules especially when the Workman does not hold a civil post, cannot be sustained. The finding recorded on issue No. 3 by the Labour Court, U.T. Chandigarh, is, therefore, reversed and it is held that C.W.P. No. 3303 of 1993. -8- availing of remedy of Appeal under the Service Rules by a Workman, who is not holding a civil post, will not operate as resjudicata and it will not bar the availing of remedy under the Industrial Disputes Act, 1947. The contention of counsel for the petitioner that the Managing Director was not the Competent Authority to suspend, to initiate department proceedings and to pass the order of punishment, as the said power was vested with the Board of Directors alone as per Rules 5(i)(c), 6, and 9 of the Service Rules would have been correct, had the Board of Directors not delegated the said powers to the Managing Director of the respondent/Cooperative Bank. As per Rules 5(i)(c), 6, and 9 of the Service Rules, there can be no dispute that the Board of Directors is the appointing authority and the punishing authority of the employees specified in the Appendix ‘A’ and the post of peon finds mention therein. It is also not in dispute that the Board of Directors can delegate the said powers. As per bye-laws 47.19 and 47.20 of the Cooperative Bank, the Managing Director shall have the power to appoint, transfer, suspend, chargesheet, reinstate, or punish the employees. Bye-laws 47.19 and 47.20 of the Cooperative Bank read as follow :- “The Managing Director shall exercise the following duties :- 47.1 to 47.18 xx xx xx xx xx xx xx 47.19. To appoint, transfer, suspend, reinstate or punish employees of the bank below the rank of and including Junior Accountants. 47.20. To suspend and chargesheet any employee of the bank and its branches. 47.21 xx xx xx xx xx xx xx xx” That apart, the Executive Committee, vide its Resolution No. 9, dated 30.09.1975 (Annexure-P-8), delegated in future the powers of the Appointing Authority in respect of employees upto the status and grade of the Junior Accountants to the Managing Director, which had been confirmed by the Board of Directors, vide Resolution No. 2, dated 02.02.1976. Thus, it cannot be said that the Managing Director of the respondent/Cooperative C.W.P. No. 3303 of 1993. -9- Bank was not the Competent Authority to suspend, initiate departmental proceeding and punish the petitioner. The contention of counsel for the petitioner that the life of the delegation of its powers on other officials / authorities by the Board of Directors is co-terminus with the expiry of the tenure of the Board of Directors, cannot be accepted. The Cooperative Societies registered under the Punjab Cooperative Societies Act, 1961, is a body corporate, which does not cease to exist with the expiry of tenure of Board of Directors. The decisions taken by the Board of Directors continue to have force even after the tenure of Board of Directors comes to an end unless the resolution passed by the Board of Directors itself specifies the life or the terms and conditions on fulfilment or violation thereof shall have the effect of annulment of the decision taken by the Board of Directors. No time has been fixed or specified with regard to the life of the decision taken by the resolution passed by the Executive Committee of the respondent/Cooperative Bank, which has been ratified by the Board of Directors, meaning thereby that the said decision will continue to have effect till the same is amended, modified, withdrawn, rescinded or annulled by the Board of Directors. In view of the above, the order of suspension, initiation of departmental proceedings and the order of punishment by the Managing Director of the respondent/Cooperative Bank, is in accordance with law. The contention of counsel for the petitioner that the petitioner has been deprived of his right to defend himself and the principles of natural justice have been violated during the inquiry proceedings by non supply of the copies of the pages of the attendance register from January to May, 1983, and June/July, 1983, and not given an opportunity to cross-examine the Presenting Officer, cannot be accepted in the light of the fact that the C.W.P. No. 3303 of 1993. -10- petitioner was offered the original attendance register to be inspected by him, which offer was admittedly not accepted by the petitioner and therefore, it cannot be said that the principles of natural justice have not been complied with or have been violated merely because copies of such documents had not been supplied to the petitioner. Access to the said documents was permitted by the respondent No. 2/Cooperative Bank, which would amount to due compliance of the principles of natural justice. No prejudice has, thus, been caused to the petitioner. Since the petitioner did not participate in the inquiry proceedings thereafter and boycotted the same, the statement of the Presenting Officer was recorded by the Enquiry Officer in his absence. Thus, there was no question of cross-examination of the said Presenting Officer by the petitioner as he had not participated in the inquiry proceedings. This also does not amount to any procedural illegality or violation of the principles of natural justice as the petitioner himself had chosen not to participate in the inquiry proceedings. The documents, which had been produced before the Enquiry Officer, had been taken into consideration by the Enquiry Officer and on the basis of the said documentary evidence, inquiry report dated 23.12.1983 (Annexure-P-9) was submitted by the Enquiry Officer, wherein the charges against the petitioner stood proved to the extent that the petitioner was attached with the Deputy General Manager, where he had marked his attendance in that section upto December, 1982. Thereafter, from January, 1983, upto May, 1983, the petitioner clandestinely marked himself present in the attendance register of common cadre cell. This was done by the petitioner unauthorisedly as he was never posted or attached to the said Branch. With effect from August, 1983, the petitioner started marking himself present in the attendance register meant for the Managing Director’s staff unauthorisedly as C.W.P. No. 3303 of 1993. -11- there was no order of his posting in that section. The attendance, which had been marked by the petitioner from January to May, 1983 in the attendance register of common cadre cell and from August, 1983, onwards in the attendance register meant for the Managing Director’s staff, had not been verified by any authority or official of the said Department. Accordingly, a finding had been returned by the Enquiry Officer that the marking of attendance by the petitioner in these two departments was unauthorised, and without any order of the competent authority. The petitioner did not mark his attendance for the months of June and July 1983, in any of the registers maintained by the section of the Deputy General Manager, (where he was attached) or common cadre cell or Managing Director’s staff, therefore, it was proved from the records that he was absent from duty during the months of June and July, 1983. Before the Labour Court, the petitioner appeared as AW-1. He had only referred to the period January, 1983 to May, 1983, where he states that he had not absented for the said period, but not a word had been said about the period of June and July, 1983. The Enquiry Officer had returned a finding against the petitioner that he had absented himself in June and July, 1983, but no records had been produced by the petitioner before the Labour Court nor had any record been summoned by him to prove that he had, as a matter of fact, worked with the respondent/Cooperative Bank for the said period as he would have been the best person to firstly assert before the Labour Court with regard to his place(s) of duty with the respondent/Cooperative Bank, especially when the respondent/Cooperative Bank had taken a stand that he had absented himself from duty and had not worked for the said period or marked his attendance in any of the Departments. The findings, thus, recorded by the Enquiry Officer, which was C.W.P. No. 3303 of 1993. -12- based on the documentary evidence, cannot be said to be without any evidence. The absence of the petitioner for the months of June and July, 1983, stood proved and, therefore, the reliance upon the report of the inquiry officer by the Managing Director for terminating the services of the petitioner, is fully justified. The Award passed by the Labour Court, therefore, cannot be faulted with and deserves to be upheld. Even in the writ petition preferred by the petitioner, there is no assertion by the petitioner that he had worked in June and July, 1983, with the respondent/Cooperative Bank nor has he mentioned as to where and in which department of the respondent/Cooperative Bank he had performed his duties. In the written statement, a specific stand has been taken by the respondent/Cooperative Bank that he had absented himself from duty in June and July, 1983, and his presence had not been marked in any of the departments of the respondent/Cooperative Bank. No replication has been filed by the petitioner controverting this fact, therefore, the contention of counsel for the petitioner is rejected. In the light of above, the present writ petition is dismissed. (AUGUSTINE GEORGE MASIH) JUDGE June 30, 2010. sjks. Whether referred to the Reporter : Yes.