1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2864 OF 2008 Shivaji Raghunath Pednekar ..Petitioner. Vs. ACE Co-operative Bank Ltd. erstwhile known as Air Corporation Employees Co-op. Bank Ltd. and others ..Respondents. ..... Mr. V.P. Vaidya for the Petitioner. Mr. A.V. Bukhari with Mr. Burhan V. Bukhari for Respondents 1 and 2. .... CORAM: DR. D.Y. CHANDRACHUD, J. 29th April, 2008. P.C. : 1. The Petitioner was working as a clerk with the First Respondent and after receiving his promotions while in service he was working as a Junior Officer with effect from 1st August, 1993. A charge-sheet was issued to the Petitioner on 11th December, 1997 arising out of a letter which was addressed by the Petitioner to the Chairman of the Bank on 25th September, 1997. The allegation against the Petitioner was that he was guilty of willful insubordination and/or the commission of an act subversive of 2 discipline or good behaviour. A disciplinary enquiry was convened. Upon the conclusion of the enquiry, the Petitioner came to be demoted from the post of Junior Officer to the post of Cashier. The Petitioner instituted a proceeding under Section 78 of the Bombay Industrial Relations Act, 1946. 2. By an order dated 29th August, 2002 the Labour Court came to the conclusion that the disciplinary enquiry was in consonance with the principles of natural justice and that the findings of the Enquiry Officer were not perverse. An appeal filed by the Petitioner was dismissed by the Industrial Court on 16th March, 2005. Thereupon, by an order dated 18th April, 2007 the Labour Court came to the conclusion that the punishment of demotion which was imposed upon the Petitioner was not unlawful. Consequently, the application filed by the Petitioner was dismissed. In an appeal against that order, the Industrial Court by an order dated 11th January, 2008 came to the conclusion that the punishment of demotion that was imposed upon the Petitioner was not in accordance with the Standing Orders in as much as such a 3 penalty was not prescribed under the Certified Standing Orders under the Industrial Employment (Standing Orders) Act 1946. However, while disposing of the appeal the Industrial Court granted liberty to the Respondents to impose upon the Petitioner an appropriate punishment as provided in Clause 24 of the Certified Standing Orders. 3. Following the order of the Industrial Court on 27th March, 2008 the Chief Executive Officer of the Respondent Bank imposed a penalty of dismissal from service upon the Petitioner. 4. In these proceedings under Articles 226 and 227 of the Constitution the Petitioner has sought to impugn the correctness of the order dated 11th January, 2008 passed by the Industrial Court only insofar as it granted liberty to the Respondents to impose upon him a punishment as provided in Clause 24 of the Certified Standing Orders and the legality of the order of dismissal dated 27th March, 2008. Now insofar as the legality of the order of dismissal is concerned, the exercise of the writ jurisdiction under 4 Articles 226 and 227 would not be warranted in view of the fact that the First Respondent which is a co-operative bank is not State within the meaning of Article 12. Moreover, the Petitioner would have an efficacious and alternate remedy of taking recourse to his remedies under the Bombay Industrial Relations Act, 1946 for impugning the correctness of the punishment that has been imposed upon him. The submission that has been urged in the present proceedings is confined to the correctness of the third direction contained in the order of the Industrial Court which is to the following effect : “The Respondents would be at liberty to impose upon the Applicant, appropriate punishment as provided in Clause 24 of the standing orders.” 5. On behalf of the Petitioner, it has been submitted that the Industrial Court was exercising jurisdiction under Sections 78 and 79 of the Act and was empowered to determine both the legality and the propriety of the order of demotion. Having held that the penalty of demotion was not a prescribed penalty under the Certified Standing Orders, it was urged that the Industrial Court 5 ought to have also considered the propriety of the punishment and imposed some other punishment upon the Petitioner instead of relegating him to the disciplinary authority. 6. There is no merit in the submission. As the facts which have been narrated herein above will show, the enquiry has been held to be fair and proper and the finding is that the conclusion that the Petitioner was guilty of misconduct was not perverse. The Labour Court had initially affirmed the correctness of the order demoting the Petitioner from the rank of Junior Officer to Cashier, but in revision the Industrial Court came to the conclusion that an order of demotion was not one of the stipulated penalties under the Certified Standing Orders. Hence, the Industrial Court concluded that the penalty which was imposed upon the Petitioner will have to be quashed and set aside. Having held that the penalty was not lawfully imposed, it was only appropriate and proper for the Industrial Court to direct that the employer would be at liberty to impose a punishment that was in accordance with Clause 24 of the Certified Standing Orders. The submission that 6 the Industrial Court ought to have imposed a proper punishment itself cannot be accepted for more than one reason. First and foremost primarily it is the jurisdiction of the employer in a disciplinary proceeding to enquire upon the question of misconduct and if misconduct is found to be established, to impose a penalty in accordance with law. In the present case, it must be emphasized that the order of penalty was interfered with only on the ground that it was not a stipulated penalty as provided in the Certified Standing Orders. It was only therefore necessary and proper for the Industrial Court to allow the employer to pass a fresh order in accordance with Clause 24 of the Certified Standing Orders. Secondly, it is now well settled following the judgment of the Division Bench in Municipal Corporation of Greater Bombay v. S.E. Phadtare1 that the Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946 is not vested with the powers that are conferred by Section 11-A of the Industrial Disputes Act, 1947. The same view has been reiterated in a judgment of the Learned Single Judge of this Court in Fancy 1 1994 1 CLR 301. 7 Corporation Limited v. Girdhari Mangru Yadav2. In that view of the matter, the Industrial Court would have transgressed the limitations on its jurisdiction, having come to the conclusion that the penalty which was imposed was not one of those stipulated in Clause 24 of the Certified Standing Orders, to directly impose a penalty by itself without allowing the employer to do so in the first instance. Insofar as the penalty that has been now imposed by the order dated 27th March, 2008 is concerned, the Petitioner would have to be relegated to the remedy of taking recourse to the appropriate proceedings in accordance with law of impugning the legality and propriety of the punishment. The Petition is accordingly dismissed. 7. However, it is clarified that for the purposes of the present order this Court has had no occasion to consider the propriety of the punishment imposed by the employer by the impugned order dated 27th March, 2008 and any proceedings that may be instituted by the Petitioner shall be considered and disposed of by the appropriate Court in accordance with law. 2 2007(3) Bom. C.R. 622. 8 *****