: 1 : 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.2610 OF 2003 WRIT PETITION NO.2610 OF 2003 WRIT PETITION NO.2610 OF 2003 Bombay Mercantile Cooperative Bombay Mercantile Cooperative Bombay Mercantile Cooperative ) Bank Ltd., a Cooperaetive Bank ) Bank Ltd., a Cooperaetive Bank ) Bank Ltd., a Cooperaetive Bank ) registered under the Multi ) registered under the Multi ) registered under the Multi ) Cooperatife Societies Act,2002 ) Cooperatife Societies Act,2002 ) Cooperatife Societies Act,2002 ) having its Registered office ) having its Registered office ) having its Registered office ) at 89 Mohamedali Road, ) at 89 Mohamedali Road, ) at 89 Mohamedali Road, ) Mumbai 400 003. )....Petitioner Mumbai 400 003. )....Petitioner Mumbai 400 003. )....Petitioner Versus Versus Versus 1. Mr. Mohammed Saleem Shaikh ) 1. Mr. Mohammed Saleem Shaikh ) 1. Mr. Mohammed Saleem Shaikh ) 6AB-7AB, Zariwala Building ) 6AB-7AB, Zariwala Building ) 6AB-7AB, Zariwala Building ) Null Bazzar, Mumbai 400 003 ) Null Bazzar, Mumbai 400 003 ) Null Bazzar, Mumbai 400 003 ) 2. Bombay Mercantile Coop. Bank ) 2. Bombay Mercantile Coop. Bank ) 2. Bombay Mercantile Coop. Bank ) Staff Union, a Union ) Staff Union, a Union ) Staff Union, a Union ) registered under The Trade ) registered under The Trade ) registered under The Trade ) Unions Act, 1926, having its ) Unions Act, 1926, having its ) Unions Act, 1926, having its ) office at 78, Mohammedali ) office at 78, Mohammedali ) office at 78, Mohammedali ) Road, Mumbai 400 003. )....Respondents Road, Mumbai 400 003. )....Respondents Road, Mumbai 400 003. )....Respondents Mr.P.K.Rele with Mr.Piyush Shah for petitioner Mr.P.K.Rele with Mr.Piyush Shah for petitioner Mr.P.K.Rele with Mr.Piyush Shah for petitioner Mr.V.P.Vaidya for respondents Mr.V.P.Vaidya for respondents Mr.V.P.Vaidya for respondents WITH WITH WITH WRIT PETITION NO.2337 OF 2004 WRIT PETITION NO.2337 OF 2004 WRIT PETITION NO.2337 OF 2004 1. Mr.Mohammed Saleem Shaikh ) 1. Mr.Mohammed Saleem Shaikh ) 1. Mr.Mohammed Saleem Shaikh ) 6AB-7AB, Zariwala Building ) 6AB-7AB, Zariwala Building ) 6AB-7AB, Zariwala Building ) Nulla Bazar, Mumbai 400 003 )....Petitioner Nulla Bazar, Mumbai 400 003 )....Petitioner Nulla Bazar, Mumbai 400 003 )....Petitioner Versus Versus Versus 1. Bombay Mercantile Cooperative) 1. Bombay Mercantile Cooperative) 1. Bombay Mercantile Cooperative) Bank Ltd., 89, Mohammedali ) Bank Ltd., 89, Mohammedali ) Bank Ltd., 89, Mohammedali ) Road, Mumbai 400 003. ) Road, Mumbai 400 003. ) Road, Mumbai 400 003. ) 2. Shri S.C.Pandey ) 2. Shri S.C.Pandey ) 2. Shri S.C.Pandey ) : 2 : Presiding Officer, Central ) Presiding Officer, Central ) Presiding Officer, Central ) Government Industrial ) Government Industrial ) Government Industrial ) Tribunal No.1, Shram Raksha ) Tribunal No.1, Shram Raksha ) Tribunal No.1, Shram Raksha ) Bhavan, Shivsrushti Road ) Bhavan, Shivsrushti Road ) Bhavan, Shivsrushti Road ) 1st floor,Opp.Priyadarshini ) 1st floor,Opp.Priyadarshini ) 1st floor,Opp.Priyadarshini ) Eastern Express Highway, ) Eastern Express Highway, ) Eastern Express Highway, ) Sion, Mumbai 400 022. )....Respondents Sion, Mumbai 400 022. )....Respondents Sion, Mumbai 400 022. )....Respondents Mr.V.P.Vaidya for petitioners Mr.V.P.Vaidya for petitioners Mr.V.P.Vaidya for petitioners Mr.P.K.Rele with Mr.Piyush Shah for respondent Mr.P.K.Rele with Mr.Piyush Shah for respondent Mr.P.K.Rele with Mr.Piyush Shah for respondent CORAM : DR.D.Y.CHANDRACHUD, J. CORAM : DR.D.Y.CHANDRACHUD, J. CORAM : DR.D.Y.CHANDRACHUD, J. DATE : 25TH JULY, 2006. DATE : 25TH JULY, 2006. DATE : 25TH JULY, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. On 1st November, 1972, the first Respondent joined 1. On 1st November, 1972, the first Respondent joined 1. On 1st November, 1972, the first Respondent joined the services of the Petitioner as a Clerk. The Petitioner the services of the Petitioner as a Clerk. The Petitioner the services of the Petitioner as a Clerk. The Petitioner is a Cooperative Bank, now deemed to be registered under is a Cooperative Bank, now deemed to be registered under is a Cooperative Bank, now deemed to be registered under the Multi State Cooperative Societies Act, 2002. The the Multi State Cooperative Societies Act, 2002. The the Multi State Cooperative Societies Act, 2002. The first Respondent is working as an Assistant Accountant at first Respondent is working as an Assistant Accountant at first Respondent is working as an Assistant Accountant at the Fort Branch of the Bank since 1992. A charge-sheet the Fort Branch of the Bank since 1992. A charge-sheet the Fort Branch of the Bank since 1992. A charge-sheet was issued to the 1st Respondent on 3rd October,1992. was issued to the 1st Respondent on 3rd October,1992. was issued to the 1st Respondent on 3rd October,1992. Disciplinary proceedings were convened on a charge of Disciplinary proceedings were convened on a charge of Disciplinary proceedings were convened on a charge of negligence resulting in serious losses to the Bank, of negligence resulting in serious losses to the Bank, of negligence resulting in serious losses to the Bank, of committing an act prejudicial to the interest of the Bank committing an act prejudicial to the interest of the Bank committing an act prejudicial to the interest of the Bank and of conduct in breach of the rules of business of the and of conduct in breach of the rules of business of the and of conduct in breach of the rules of business of the bank governing the running of a department. bank governing the running of a department. bank governing the running of a department. 2. On 5th September, 1992 a cheque book requisition 2. On 5th September, 1992 a cheque book requisition 2. On 5th September, 1992 a cheque book requisition : 3 : slip, bearing Sr. Nos.926811 to 926820, was presented slip, bearing Sr. Nos.926811 to 926820, was presented slip, bearing Sr. Nos.926811 to 926820, was presented against Savings Bank Account No.839 in the name of against Savings Bank Account No.839 in the name of against Savings Bank Account No.839 in the name of Mr.K.S.Shikari for the issuance of a new cheque book. The Mr.K.S.Shikari for the issuance of a new cheque book. The Mr.K.S.Shikari for the issuance of a new cheque book. The requisition slip was submitted to the Token Clerk for requisition slip was submitted to the Token Clerk for requisition slip was submitted to the Token Clerk for verification and was thereafter placed before the First verification and was thereafter placed before the First verification and was thereafter placed before the First Respondent. The First Respondent put his initials and Respondent. The First Respondent put his initials and Respondent. The First Respondent put his initials and stamped the cheque book requisition slip in token of stamped the cheque book requisition slip in token of stamped the cheque book requisition slip in token of having verified the signature appearing on the said slip having verified the signature appearing on the said slip having verified the signature appearing on the said slip with the specimen signature recorded with the bank. A with the specimen signature recorded with the bank. A with the specimen signature recorded with the bank. A cheque book bearing Cheque Nos.260691 to 260700 was issued cheque book bearing Cheque Nos.260691 to 260700 was issued cheque book bearing Cheque Nos.260691 to 260700 was issued to a person who had presented the requisition slip and who to a person who had presented the requisition slip and who to a person who had presented the requisition slip and who acknowledged receipt of the cheque book. It is alleged acknowledged receipt of the cheque book. It is alleged acknowledged receipt of the cheque book. It is alleged that the cheque book requisition slip bearing No.926811 to that the cheque book requisition slip bearing No.926811 to that the cheque book requisition slip bearing No.926811 to 926820 was fake and the signature which appeared on the 926820 was fake and the signature which appeared on the 926820 was fake and the signature which appeared on the requisition slip did not tally with the specimen signature requisition slip did not tally with the specimen signature requisition slip did not tally with the specimen signature on the record of the bank. Despite this the requisition on the record of the bank. Despite this the requisition on the record of the bank. Despite this the requisition slip was approved by the First Respondent. It is alleged slip was approved by the First Respondent. It is alleged slip was approved by the First Respondent. It is alleged in the charge-sheet that the requisition slip contained in the charge-sheet that the requisition slip contained in the charge-sheet that the requisition slip contained several discrepancies which showed that it was not several discrepancies which showed that it was not several discrepancies which showed that it was not genuine. These included the following :- genuine. These included the following :- genuine. These included the following :- (i) The paper which had been used on the (i) The paper which had been used on the (i) The paper which had been used on the requisition slip was rough and was normally not requisition slip was rough and was normally not requisition slip was rough and was normally not used in the cheque books supplied by the bank; used in the cheque books supplied by the bank; used in the cheque books supplied by the bank; : 4 : (is) The get up of printing was not according (is) The get up of printing was not according (is) The get up of printing was not according to the get up of cheque books supplied to the Fort to the get up of cheque books supplied to the Fort to the get up of cheque books supplied to the Fort Branch; Branch; Branch; (iii) The name of the bank was printed in Hindi, (iii) The name of the bank was printed in Hindi, (iii) The name of the bank was printed in Hindi, below the name in English, which was not so in the below the name in English, which was not so in the below the name in English, which was not so in the case of Savings Books supplied to the Fort Branch; case of Savings Books supplied to the Fort Branch; case of Savings Books supplied to the Fort Branch; (iv) The requisition slip did not contain a (iv) The requisition slip did not contain a (iv) The requisition slip did not contain a perforation nor did it have a counterfoil as in perforation nor did it have a counterfoil as in perforation nor did it have a counterfoil as in the case of a Savings Bank cheque book; and the case of a Savings Bank cheque book; and the case of a Savings Bank cheque book; and (v) The series 926811 to 926820 did not (v) The series 926811 to 926820 did not (v) The series 926811 to 926820 did not pertain to the Savings Account cheque books pertain to the Savings Account cheque books pertain to the Savings Account cheque books supplied to the Fort Branch. supplied to the Fort Branch. supplied to the Fort Branch. Subsequently it is alleged that a cheque came to be issued Subsequently it is alleged that a cheque came to be issued Subsequently it is alleged that a cheque came to be issued and an amount of Rs.20,000/= was withdrawn by using a and an amount of Rs.20,000/= was withdrawn by using a and an amount of Rs.20,000/= was withdrawn by using a cheque from the cheque book which was handed over by the cheque from the cheque book which was handed over by the cheque from the cheque book which was handed over by the First Respondent. First Respondent. First Respondent. 3. The First Respondent submitted his explanation to 3. The First Respondent submitted his explanation to 3. The First Respondent submitted his explanation to the charge sheet and denied the allegations. The bank the charge sheet and denied the allegations. The bank the charge sheet and denied the allegations. The bank : 5 : proceeded with the enquiry. The enquiry commenced from proceeded with the enquiry. The enquiry commenced from proceeded with the enquiry. The enquiry commenced from 9th February,1993 and was concluded on 25th June, 1994. 9th February,1993 and was concluded on 25th June, 1994. 9th February,1993 and was concluded on 25th June, 1994. It is not disputed that the First Respondent participated It is not disputed that the First Respondent participated It is not disputed that the First Respondent participated in the enquiry and was duly represented by a defence in the enquiry and was duly represented by a defence in the enquiry and was duly represented by a defence representative. The Inquiry Officer submitted his report representative. The Inquiry Officer submitted his report representative. The Inquiry Officer submitted his report on 16th November, 1994 and came to the conclusion that the on 16th November, 1994 and came to the conclusion that the on 16th November, 1994 and came to the conclusion that the first respondent was guilty of the charges levelled first respondent was guilty of the charges levelled first respondent was guilty of the charges levelled against him. A copy of the report and of the findings against him. A copy of the report and of the findings against him. A copy of the report and of the findings thereon was forwarded to the petitioner on 6th January, thereon was forwarded to the petitioner on 6th January, thereon was forwarded to the petitioner on 6th January, 1995 under cover of a letter of the Disciplinary 1995 under cover of a letter of the Disciplinary 1995 under cover of a letter of the Disciplinary authority. The Disciplinary authority proposed a authority. The Disciplinary authority proposed a authority. The Disciplinary authority proposed a punishment of the stoppage of one annual increment. The punishment of the stoppage of one annual increment. The punishment of the stoppage of one annual increment. The First Respondent submitted his reply. The Disciplinary First Respondent submitted his reply. The Disciplinary First Respondent submitted his reply. The Disciplinary authority imposed a punishment of the stoppage of one authority imposed a punishment of the stoppage of one authority imposed a punishment of the stoppage of one annual increment on 22nd April, 1995 holding that the annual increment on 22nd April, 1995 holding that the annual increment on 22nd April, 1995 holding that the charges were duly established. The departmental appeal charges were duly established. The departmental appeal charges were duly established. The departmental appeal submitted by the first respondent was dismissed by the submitted by the first respondent was dismissed by the submitted by the first respondent was dismissed by the Appellate authority on 6th May, 1996. Appellate authority on 6th May, 1996. Appellate authority on 6th May, 1996. 4. In the meantime, the bank had initiated the 4. In the meantime, the bank had initiated the 4. In the meantime, the bank had initiated the promotion process for carrying out promotions to the promotion process for carrying out promotions to the promotion process for carrying out promotions to the Officers’ Grade and a merit list was displayed on 22nd Officers’ Grade and a merit list was displayed on 22nd Officers’ Grade and a merit list was displayed on 22nd January 1993. The merit list was displayed before a January 1993. The merit list was displayed before a January 1993. The merit list was displayed before a charge-sheet came to be issued to the First Respondent in charge-sheet came to be issued to the First Respondent in charge-sheet came to be issued to the First Respondent in : 6 : the disciplinary proceedings on 3rd October, 1992. The the disciplinary proceedings on 3rd October, 1992. The the disciplinary proceedings on 3rd October, 1992. The bank did not promote the first respondent to the Officers’ bank did not promote the first respondent to the Officers’ bank did not promote the first respondent to the Officers’ cadre during the pendency of the disciplinary proceeding cadre during the pendency of the disciplinary proceeding cadre during the pendency of the disciplinary proceeding and thereafter having regard to the provisions of and thereafter having regard to the provisions of and thereafter having regard to the provisions of Settlement to which a reference will made in this Settlement to which a reference will made in this Settlement to which a reference will made in this judgment. The dispute raised by the Union on behalf of judgment. The dispute raised by the Union on behalf of judgment. The dispute raised by the Union on behalf of the First Respondent was taken into conciliation and the First Respondent was taken into conciliation and the First Respondent was taken into conciliation and eventually, the appropriate Government made a reference to eventually, the appropriate Government made a reference to eventually, the appropriate Government made a reference to adjudication. The reference was with regard to the adjudication. The reference was with regard to the adjudication. The reference was with regard to the punishment of the stoppage of one annual increment and punishment of the stoppage of one annual increment and punishment of the stoppage of one annual increment and with regard to the denial of promotion to the first with regard to the denial of promotion to the first with regard to the denial of promotion to the first Respondent. Respondent. Respondent. 5. The Industrial Tribunal came to the conclusion 5. The Industrial Tribunal came to the conclusion 5. The Industrial Tribunal came to the conclusion that the findings in the Disciplinary proceedings were that the findings in the Disciplinary proceedings were that the findings in the Disciplinary proceedings were based on the evidence and that there was no perversity in based on the evidence and that there was no perversity in based on the evidence and that there was no perversity in the findings. The Tribunal then dealt with the second the findings. The Tribunal then dealt with the second the findings. The Tribunal then dealt with the second issue as to whether the Management was justified in issue as to whether the Management was justified in issue as to whether the Management was justified in refusing promotion to the First Respondent to the refusing promotion to the First Respondent to the refusing promotion to the First Respondent to the Officers’ cadre. The Tribunal held that the First Officers’ cadre. The Tribunal held that the First Officers’ cadre. The Tribunal held that the First Respondent participated in the Promotion process prior to Respondent participated in the Promotion process prior to Respondent participated in the Promotion process prior to the initiation of disciplinary proceedings. The First the initiation of disciplinary proceedings. The First the initiation of disciplinary proceedings. The First Respondent was found eligible for promotion prior to the Respondent was found eligible for promotion prior to the Respondent was found eligible for promotion prior to the order of punishment. The Tribunal held that at the order of punishment. The Tribunal held that at the order of punishment. The Tribunal held that at the : 7 : highest, the imposition of a disciplinary penalty on the highest, the imposition of a disciplinary penalty on the highest, the imposition of a disciplinary penalty on the first respondent could be taken into account while first respondent could be taken into account while first respondent could be taken into account while reviewing the past service of the first respondent for the reviewing the past service of the first respondent for the reviewing the past service of the first respondent for the purpose of considering his entitlement for promotion. In purpose of considering his entitlement for promotion. In purpose of considering his entitlement for promotion. In these circumstances, the Tribunal held that the Management these circumstances, the Tribunal held that the Management these circumstances, the Tribunal held that the Management was not justified in holding the First Respondent to be was not justified in holding the First Respondent to be was not justified in holding the First Respondent to be disentitled to promotion. A direction was issued to the disentitled to promotion. A direction was issued to the disentitled to promotion. A direction was issued to the bank to consider the case of the first respondent for bank to consider the case of the first respondent for bank to consider the case of the first respondent for promotion to the post of an Officer taking into account promotion to the post of an Officer taking into account promotion to the post of an Officer taking into account the additional factor that he had been punished in the the additional factor that he had been punished in the the additional factor that he had been punished in the meantime. This factor of punishment was directed to be meantime. This factor of punishment was directed to be meantime. This factor of punishment was directed to be taken into account as a part of the service record of the taken into account as a part of the service record of the taken into account as a part of the service record of the First Respondent prior to promotion in accordance with the First Respondent prior to promotion in accordance with the First Respondent prior to promotion in accordance with the Memorandum of Settlement dated 9th January 1991. Memorandum of Settlement dated 9th January 1991. Memorandum of Settlement dated 9th January 1991. 6. The order of the Tribunal is questioned in these 6. The order of the Tribunal is questioned in these 6. The order of the Tribunal is questioned in these proceedings both the Management and by the workman. The proceedings both the Management and by the workman. The proceedings both the Management and by the workman. The workman is aggrieved by the order in so far as the workman is aggrieved by the order in so far as the workman is aggrieved by the order in so far as the Tribunal held that there was no perversity in the findings Tribunal held that there was no perversity in the findings Tribunal held that there was no perversity in the findings in the disciplinary enquiry. The Management questioned in the disciplinary enquiry. The Management questioned in the disciplinary enquiry. The Management questioned the order in so far as it directs the Bank to reconsider the order in so far as it directs the Bank to reconsider the order in so far as it directs the Bank to reconsider the grant of promotion to the First Respondent to the the grant of promotion to the First Respondent to the the grant of promotion to the First Respondent to the Officers’ cadre by taking into account the disciplinary Officers’ cadre by taking into account the disciplinary Officers’ cadre by taking into account the disciplinary penalty as one factor relevant to the past service record. penalty as one factor relevant to the past service record. penalty as one factor relevant to the past service record. : 8 : 7. It would be appropriate to take up first and 7. It would be appropriate to take up first and 7. It would be appropriate to take up first and foremost, the challenge by the workman to the legality of foremost, the challenge by the workman to the legality of foremost, the challenge by the workman to the legality of the findings of the Tribunal with regard to the the findings of the Tribunal with regard to the the findings of the Tribunal with regard to the disciplinary enquiry. The Tribunal has proceeded on the disciplinary enquiry. The Tribunal has proceeded on the disciplinary enquiry. The Tribunal has proceeded on the basis that it was exercising jurisdiction under Section basis that it was exercising jurisdiction under Section basis that it was exercising jurisdiction under Section 11A of the Industrial Disputes Act, 1947. The Tribunal 11A of the Industrial Disputes Act, 1947. The Tribunal