JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The petitioner was appointed as Junior Clerk-cum-Cashier on 5.3.1987 in Bareilly Keshtriya Gramin Bank (hereinafter referred as the Bank), which was constituted in exercise of powers under the Regional Rural Bank Act, 1976 in 1987. The terms and condition of service of the employers are also governed by the Service Regulations framed in the year 1987.
3. It appears that certain financial irregularities were committed by the Branch Manager of the Bank and the Field Officer. A First Information Report was lodged against the aforesaid Branch Manager and the Field Officer in which the name of the petitioner was not included. After enquiry the Branch Manager and the Field Officer were dismissed from service. The petitioner was also given show cause notice inter-alia, that he has made some irregular payment through one Sri Chunni Lal, peon of the Bank. The petitioner submitted his reply to the show cause notice on 27.2.2001.
4. It appears from the record that the petitioner was also given a memorandum of a charge sheet levelling certain charges on 20.8.2003. The petitioner submitted his reply to this charge sheet. Thereafter the Enquiry Officer submitted inquiry report dated 3.3.2004 to the Disciplinary Authority/Chairman of the Bank with copy to the petitioner along with letter dated 5.3.2004 finding the following charges proved against him.
**1- muds n~okjk fyfid lg jksdfM;k ds :I esa vius drZO;ksa @ nkf;Roksa dk fuokZg vlko/kuhiwoZd djrs gq;s xSj oS;fDrd (Impersonated) _.kksa dk Hkqxrku fd;k x;k A & fl?n~ gqvk A 2- muds n~okjk cSd ds jksd+M ysunsu esa lEckzfU/kr funs'kksa dh vogsyuk dh xbZ vkSj ;Fkkfof/k Hkqxrku (payment in due course) ugha fd;k x;k A &&&fl?n gqvk A 3- mudh ukijokgh o /kks[kk/kMh ds d`R;ksa ls cSd dks :0&6]46]000&00 rFkk forj.k dh frfFk ls C;kt dh gkfu gqbZ A &&&fl?n gqvk A 4- muds nokjk cSd dh lsok bZekunkjh ,oa cQknkjh ls ugha dh xbZ &&&fl?n gqvk A 5- muds nokjk tku cw>dj ,sls d`R; ,oa yksi fd;s x;s] tks cSd fgrksa ds foijhr gS A &&&fl?n gqvk A 6- muds n~okjk fyfid lg jksdfM;k ds :I esa vius in dk nq:i;ksx fd;k x;k A &&&fl?n gqvk A 7- muds n~okjk okLrfod rF;ksa dks iz/kku dk;kZy; ls Nqik;k x;k ! &&&fl?n gqvk A**
5. The petitioner appears to have also submitted his objection to the enquiry report on 21.3.2004.
6. The Disciplinary Authority on 17.5.2004 proposed for taking of punishment of dismissal from service. After considering the reply of the petitioner to the order of proposed punishment the Disciplinary Authority/Chairman vide order dated 2.12.2004 placed the petitioner to a lower stage in his incremental scale by 8 increments. The operative portion of the order is as under:-
**Jh iznhi dqekj] fyfid lg jksdfM;k ds fo:?n gq;s mijksDr leLr nks"kkjksi la0& 9 ls 7 rd ds fy;s la;qDr :I ls Jh iznhi dqekj fyfid lg jksdfM;k ds DYdZ de dSf'k;j in ds osrueku essa muds orZeku Lrj lsa 8 ¼vkB½ osru o`f/n ds Lrj rd inour fd;s tkus (Degradation to a lower stage in his incremental scale by 8 increments) dk naM fn;k tkrk gS A ;fn Jh iznhi dqekj] fyfid lg jksdfM;k ds fo:?n vU; dksbZ [email protected] vuq'kklukzRed izkf/kdkjh ds laKku esa vkrk gS rks vuq'kkjkukRed izf/kdkjh] Jh iznhi dqekj] fyfid lg jksdfM;k ds fo:/n vU; vkjksi i= tkjh djus dk vf/kdkj lqjf{kr j[krk gS A vuq'kklukRed izkf/kdkjh Jh iznhi dqekj] da fo:/n cSad dh 'kk[kkvksa esa muds tek [kkrksa [email protected] ns; osru vFkok muds Hkfo"; fuf/k[kkrsa ls cSad dks igqWpkbZ xbZ @ gqbZ gkfu dks olwyus dk vf/kdkj lqjf{kr j[krk gS tc rd fd muds n~okjk igqWpkbZ x;h @ gqbZ gkfu iw.kZr% olwy u gks tk;s A blds vfrfjDr Jh iznhi dqekj ds fo:?n ;fn dksbZ okn U;k;ky; esa py jgk gS vFkok dksbZ iqfyl d;Zokgh py jgh gS] rks mlls ;g vkns'k izHkkfor ugha gksxk vkSj u gh ;g vkns'k U;k;ky; vFkok iqfylds fu.kZ; dks izHkkfor djsxk A g0 voBuh;
¼ vuq'kklukRed izkf/kjkjh ,oa v?;{k½**
7. Aggrieved by the aforesaid order of punishment dated 2.12.2004 the petitioner filed appeal before the Board of Director of the Bank which was rejected vide order dated 21.10.2005.
8. The petitioner has challenged the orders dated 2.12.2004 and 21.10.2005 passed by the Disciplinary Authority and the Appellate Authority (Annexures-12 and 14 to the writ petition) praying for quashing of the aforesaid orders and for any other order in the writ petition.
9. The counsel for the petitioner has urged that the Chairman of the bank has passed the impugned order as the Disciplinary Authority. Relying upon the Regulation 38 (11)(b)(iv) of the Regulations it is urged by the counsel for the petitioner that the impugned order dated 2.12.2004 is contrary to the said Regulation. He further submits that the increment cannot be stopped for beyond six months and that the punishment awarded to the petitioner is highly disproportionate and that the petitioner was not involved in committing any financial irregularity. It is lastly urged that the grounds taken in the appeal has not been considered and decided by the Appellate Authority. Regulation 38(11)(b)(iv) of the Regulations is as under:-
(iv) reduction of pay to next lower stage up to a maximum period of 2 years in case the staff has reached the maximum in the scale of pay.
10. The standing counsel submits that the Chairman was the Disciplinary Authority as is apparent from letter dated 21.10.2005 appended as Annexure-14 to the writ petition and there is no illegality in the order of punishment by the Disciplinary Authority. He further submits that the appeal is provided to the Board of Director before whom the petitioner had admittedly filed the appeal. Perusal of Regulation 38(II)(b)(iv) shows that it is in respect where staff has reached the maximum in the pay scale his reduction of pay to next lower stage for maximum period of 2 years i.e. it is in respect of period for which the reduction is to remain in force whereas in the instant case, the petitioner has been reduced by 8 stages in the incremental scale. Thus, the Regulation 38(II)(b)(iv) is not applicable and the contention of the learned Counsel for the petitioner that the order of punishment is in violation of the aforesaid regulation is not tenable. It is further urged that this Court under Article 226 of the Constitution should not appreciate the evidence or decide any factual controversy, which can only be decided by the Central Government-cum-Industrial Tribunal under Section 11A read with Section 10 on a reference under the Industrial Disputes Act, 1947 which is pari materia to Section 6(2-A) and 4-K of the U.P. Industrial Disputes Act.
11. The question whether the petitioner was involved in any financial irregularity or not and that the punishment awarded is disproportionate or not requires to be decided by adjudication of facts and whether the Disciplinary Authority had no jurisdiction in the matter and the Board of Director i.e. the Appellate Authority has taken wrong view in the matter are all the questions of facts which are all to be decided on the basis of oral and documentary evidence. All these are not feasible under Article 226 of the Constitution of India,
12. Sri Anil Bhushan, counsel for the petitioner has no answer to the question that the petitioner can raise all these disputed questions of facts successful in the alternative and efficacious remedy available to him before the Labour Court.
13. In view of the law laid down by the Hon'ble Supreme Court in Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. , Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke , Scooters India v. V. Vijai E.V. Eldred , L.L. Sudhakar Reddy v. State of Andhra Pradesh , State of Bihar v. Jain Plastics & Chemical Ltd. , Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. , Hindustan Steel Works Construction Ltd., and Anr. v. Hindustan Steel Works Construction Ltd., Employees Union U.P. State Spinning Co. Ltd. v. R.S. Pandev and Anr. (2005) 107 FLR-729 the petitioner has an alternative and efficacious remedy available to him before the Central Government-cum-Industrial Tribunal under the industrial Disputes Act 1947. For these reasons, this Court is not inclined to interfere in the matter.
14. For the aforesaid reasons the petitioner has an alternative and efficacious remedy for redressal of his grievance, which he has not exhausted, the writ petition is dismissed on the ground of alternative remedy. However, if the petitioner raises an industrial dispute before the concerned Regional Conciliation Officer/Deputy Labour Commissioner within two months from today, the said authority will try to amicably settle the dispute. In case no settlement is arrived at, the matter shall be immediately referred by the competent authority to the Central Government-cum-Industrial Tribunal or Labour Court for adjudication as the case may be. The reference so made, shall be decided by the Court preferably within a period of six months from the date of receipt of reference. It is made clear that this petition is not decided on merit and any observation made in this judgment will not have any effect and shall be decided independently by the authority concerned. No order as to costs.