Mr. Lalit Shukla, Advocate has put in appearance on behalf of opposite parties no.2 and 3.
Heard learned counsel for the petitioner as well as learned counsel for opposite parties no.2 and 3.
The instant writ petition has been filed challenging the impugned judgment and order dated 30.04.2019, passed in I.D. Case No.4 of 2019; Goldie Sherstha Vs. Bank of Baroda and another. The petitioner has also challenged the order of dismissal dated 3.11.2018.
As per the facts of the case, as borne out from the records, the petitioner while working as Accounts-cum-Cash Clerk in Bank of Baroda, Vibhuti Khand, Lucknow was suspended vide order dated 17.11.2015, the petitioner thereafter was called upon to submit explanation, he was served a charge-sheet dated 24.11.2017. The petitioner appeared before the enquiry officer and requested for providing assistance of lawyer as per provisions of Clause 12 of Bipartite Settlement dated 10.04.2002. The demand of providing assistance of lawyer was refused and thereafter the enquiry proceedings were concluded and petitioner was served with proposed punishment notice. At this stage the union of the employees raised the dispute regarding the petitioner before Conciliation Officer where it was pending. In the meantime, punishment order of disposal from service of petitioner dated 3.11.2018 was passed. The petitioner filed a Writ Petition No.2299 (SS) of 2019 challenging the dismissal order.
Considering the submissions made by learned counsel for the petitioner as well as learned counsel for Bank the court vide order dated 29.1.2019 permitted the petitioner to prefer an appeal under Section 33-A of Industrial Disputes Act, 1947 before the Central Government Industrial Tribunal. It was also provided that the learned tribunal may decide the same within a period of three months from the date of production of order. It was thereafter that the Central Government Industrial Tribunal Lucknow vide impugned order dated 30.04.2019 has rejected the case of the petitioner on the ground that it is not maintainable.
Learned counsel for the petitioner tries to submit that once a direction was issued by High Court vide judgment and order dated 29.1.2019, it was incumbent upon the learned tribunal to have decided the case on merit and it was not open for the Industrial Tribunal to have consider the question of maintainability, as such, the order impugned is bad in the eyes of law. It is also submitted that there is non-compliance of mandatory conditions of Section 33 of Industrial Disputes Act, 1947 and that was required to be considered by learned tribunal.
Mr. Lalit Shukla, learned counsel appearing for the bank submits that under Section 33-A of Industrial Disputes Act, 1947 the aggrieved employee is at liberty to make complaint in writing to such authority where the proceedings are pending. Since no proceedings were pending before the Central Government Industrial Tribunal, as such, the case of the petitioner was not maintainable and rightly rejected. It is submitted that in fact the proceedings were pending before the Conciliation Officer and only the Conciliation Officer could have considered the case of the petitioner, if raised before him.
Be that as it may, it is to be noted that it was the union of employee which had approached the Conciliation Officer on behalf of the petitioner and some proceedings were pending before the Conciliation Officer when the punishment order of dismissal of petitioner was passed by the employee bank. Under the service conditions governing the petitioner, the petitioner has a remedy of filing departmental appeal against the punishment order of dismissal before the Deputy General Manager, Bank of Baroda, Lucknow.
The perusal of impugned punishment order dated 3.11.2018 indicates that the petitioner was given an opportunity to file an appeal against the punishment order before the appellate authority i.e. Deputy General Manager, Lucknow Zone, Lucknow within 45 days of receipt of order, however, it appears that the petitioner instead of filing appeal before the appellate authority had approached this court by filing writ petition which was disposed of, as noted above.
It is to be observed that in case there was violation of any provisions under the Industrial Disputes Act, 1947 the matter could have been raised before the authority concerned where it was pending i.e. Conciliation Officer in the present case and that too by the Union of employees not by the petitioner. Moreover, the petitioner in case is aggrieved by the punishment order then he is required to file a departmental appeal as provided under the impugned order.
Since the petitioner has not availed the statutory departmental remedy before coming to this court, as such, it would be expedient in the interest of justice that he may be provided an opportunity to avail the said statutory remedy. Since the petitioner has approached the wrong forum, as such, it is hereby provided that in case the petitioner files any appeal against the impugned punishment order of dismissal within 15 days from today the same shall be considered by the appellate authority i.e. Deputy General Manager, Bank of Baroda, Lucknow Zone, Lucknow on merits in accordance with law and the same shall be decided expeditiously, as early as possible.
Learned counsel for the petitioner, at this stage, submits that he will prefer the appeal within the period provided by the court.
In case any such appeal is filed, it is expected that the appellate authority will consider and decide the same in accordance with law expeditiously, say, within a period of three months from the date appeal is filed.
With these observations, writ petition is disposed of.
Order Date :- 27.9.2019 Ram.
[Ritu Raj Awasthi, J.]