1. Heard N.K. Seth, Senior Advocate and Sri Gopal Kumar Srivastava, learned counsel appearing for Bank and Sri Radhey Shyam Mishra, in person, in all these writ petitions.
2. In all these writ petitions common dispute having common facts are involved and writ petitions are the result of subsequent common events, hence, as requested, have been heard together and are being decided by this common judgment.
3. The substantial dispute is part of Writ Petition No. 1292 (SS) of 1998 (hereinafter referred to as the "first petition")and other three writ petitions are result of subsequent events, hence I proceed to refer facts from first petition and facts of other three petitions would be referred as and when it is necessary.
4. Petitioner was appointed as Clerk in Central Bank of India (hereinafter referred to as the "Bank") on 23.07.1973 and was confirmed on the said post. In 1976 when petitioner was working in Bank's Branch at Bahraich, he was transferred to Gonda vide order dated 11.11.1976, whereupon he joined at Gonda on 25.11.1976. On 17.07.1977 petitioner formed a political party, namely, Bhartiya Pidit Party (Indian Sufferers Party), wherein he claimed to be elected as President. He also contested Parliamentary Election from Gonda Parliamentary Constituency held in January, 1980 after having permission from Bank vide letter dated 10.12.1979 on the following two conditions:
"1. He will not be permitted to devote any time for canvassing for election during office hours.
2. He, if elected, will have to chose between employment in the Bank or otherwise since he will not be permitted to work in the Bank while simultaneously attend to the duties incidental to his election as member of Loksabha."
5. Petitioner was transferred back from Gonda to Faizabad vide order dated 08.09.1980 issued by Chief Manager, Divisional Office, Central Bank of India, Gorakhpur.
6. Through All Indian Central Bank Staff Federation (hereinafter referred to as the "Federation"), petitioner got a complaint made to General Manger vide Federation's letter dated 08.10.1980 that his transfer is on the complaint of a customer of Bank and not justified. It is alleged that said transfer amounts to victimization. A similar complaint was also made by Federation vide letter dated 10.02.1981.
7. In the meantime petitioner, however, had joined at Faizabad pursuant to transfer order dated 08.09.1980. Thereat he was served with a memo dated 30.12.1980 requiring him to explain his conduct as to why disciplinary action be not taken against him for his act of gross misconduct covered by Para 19.5 'J' and 'K' of Bipartite Settlement.
8. Another memo dated 06.01.1981 was served upon petitioner by Chief Manager alleging that petitioner has passed objectionable remarks against superior authorities of Bank in presence of officers and other persons showing an act of gross misconduct under Para 19.5 'O' of Bipartite Settlement dated 19.10.1966.
9. Petitioner replied both Memos vide separate replies dated 12.01.1981 denying allegations levelled against him.
10. A charge-sheet dated 29.04.1981 thereafter was served upon petitioner. The first charge relates to realization of money by issuing donation coupons to customers by exercising undue pressure upon them and one receipt of donation of Rs. 251/- of M/s Awadh Plywood Industries, Gonda was referred. The second charge relates to exertion of political influence to get order of transfer, cancelled. Third charge relates to utterance of indecent remarks in aggressive tone to Deputy Chief Officer on 06.10.1981.
11. Against transfer from Gonda to Faizabad, petitioner raised industrial dispute through Federation, by making complaint vide letters dated 08.10.1980 and 10.02.1981. The dispute was also raised by making representation before Assistant Labour Commissioner (Central), Kanpur [hereinafter referred to as "ALC (Central)"] vide letter dated 15.11.1981, whereupon ALC (Central) initiated conciliation proceedings and issued notice on 19.11.1981. Management thereupon agreed to post petitioner back to Gonda, hence petitioner withdrew conciliation matter initiated before ALC (Central) by submitting application dated 22.12.1981. Chief Manager, Divisional Office, Gorakhpur vide letter dated 20.01.1982 required petitioner to work at Extension Counter of Bank at Gonda after getting relieved from Faizabad Branch of the Bank.
12. Initially one Sri D.N. Singh, Assistant Branch Manager, Basti was appointed as Inquiry Officer. On his transfer, Sri K.K. Shinghal, Branch Manager, Chowk Varanasi was appointed as Inquiry Officer. Inquiry commenced with fixing 22.02.1983 for oral inquiry at Gonda office. It was communicated to petitioner vide letter dated 02.02.1983.
13. Inquiry Officer submitted report dated 05.11.1984 holding charges proved. Show cause notice was issued by Regional Manager/ Disciplinary Authority, Divisional Officer, Gorakhpur on 21.01.1985 agreeing with findings of Inquiry Officer and proposing punishment of dismissal.
14. Petitioner submitted reply dated 31.01.1985 wherein he requested that his representation dated 18.08.1984 in reply to charge-sheet, first be considered and Inquiry Officer be directed to complete defence evidence and/or petitioner be exonerated from charges.
15. Disciplinary Authority vide letter dated 31.01.1985 supplied copy of findings of inquiry to petitioner and directed him to appear on 06.02.1985 in the office to make submissions in respect of proposed punishment.
16. Petitioner submitted written reply dated 03.02.1985 mentioning that he is ill and would not be in a position to appear personally. He submitted explanation by registered post. Thereafter Bank issued punishment order dated 22.04.1985 (Annexure-26 to first petition) dismissing petitioner from service.
17. Petitioner filed an appeal (Annexure-35 to first petition) against punishment order, which has been dismissed vide order dated 19.02.1986 (Annexure-36 to first petition) by Appellate Authority. Petitioner raised an industrial dispute against dismissal order dated 22.04.1985, confirmed in appeal vide order dated 19.02.1986, which was referred for adjudication by Industrial Tribunal-cum-Labour Court, Kanpur (hereinafter referred to as the "CGIT"). It was registered as Industrial Dispute No. 159 of 1990. Reference made to CGIT reads as under:
"Whether the action of the management of Central Bank of India in dismissing Sri R.S. Mishra from the service of the Bank is justified? If not, to what relief is the workman concerned entitled?"
18. The aforesaid reference has been answered against petitioner-workman upholding his dismissal from service but awarding compensation to him. It is this award which has been impugned in "first petition", besides dismissal order dated 22.04.1985 and appellate order dated 19.02.1986. The reliefs sought in "first petition" read as under:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned award dated 30.4.97 of opposite party no. 1 contained in Enclosure No. 2 as well as the order of dismissal dated 22.4.85 issued by opposite party no. 3 and the appellate order dated 19.2.1986 passed by the Deputy General Manager, Central Bank of India, Zonal Office, Lucknow.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to reinstate the petitioner in service alongwith all the consequential benefits of service as well as status, including the entire back wages payable to the petitioner on account of quashing of the order of dismissal alongwith interest at the rate of 18% per annum and also to award the compensation of rupees two lacs for the harassment given to the petitioner in addition to the back wages for the illegal, malafide and prejudicial disciplinary proceedings commencing from the service of charge sheet to the impugned award i.e., from the year 1981 to 1998."
(emphasis added)
19. While "first petition" was pending, it appears that petitioner made representation dated 18.02.2002 claiming compassionate allowance under Regulation 12(1)(Proviso) of Central Bank of India (Employees') Pension Regulations, 1993 (hereinafter referred to as the "Regulations, 1993"). The aforesaid Regulations came into force on 01.11.1993. Another set of regulations namely, Central Bank of India (Employees') Pension Regulations, 1995 (hereinafter referred to as the "Regulations, 1995") came into force for providing compassionate allowance to employees of Bank dismissed, removed or terminated on or after 01.11.1993. The petitioner claimed compassionate allowance under Regulations, 1995 also. When representation dated 18.02.2002 was pending, petitioner filed Writ Petition No. 5820 (SS) of 2002 (hereinafter referred to as the "second petition"), seeking a single relief as under:
"(i) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay or to cause to pay compassionate allowance to the petitioner under regulation 12 of Central Bank of India (Employees) Pension Regulations, 1993 w.e.f. 19.2.1986 on which date the dismissal of the petitioner from service of the Bank was confirmed by the appellate authority/ opposite party no. 2 and the same has become final and the entire outstanding thereof alongwith the interest at the rate of 18% per annum."
20. Subsequently it appears that petitioner was communicated with an order dated 25.09.2002 rejecting his representation for compassionate allowance whereafter he got the relief sought in second petition amended and inserted three reliefs, i.e., (i)A, (i)B and (i)C, which read as under:
"(i)A. issue a writ, order or direction in the nature of certiorari quashing the impugned clause (i) of the proviso of Sub-Regulation (I) of the Regulation 31 of the Central Bank of India (Employees') Pension Regulations, 1995, which provides the payment of compassionate allowance to the employees of the bank who had been dismissed, removed or terminated on or after 1st day of November, 1993.
(i)B. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.9.2002 passed by the opposite party No. 2 and communicated by the Regional Manager, Central Bank of India, Regional Office, Gorakhpur as contained in Annexure No. 7 to the writ petition.
(i)C. issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay or to cause to pay compassionate allowance to the petitioner with effect from 19.02.1986 on which date the dismissal of the petitioner from service of the Bank has been confirmed by the appellate authority/ opposite party No. 2 and the same has become final and the entire outstanding thereof along with the interest at the rate of 18% per annum."
21. When the above two writ petitions were pending, petitioner, Radhey Shyam Mishra, in order to seek compliance of award dated 30.04.1997 to the extent, CGIT awarded compensation to him, moved an application under Section 33-C(i) of Industrial Disputes Act, 1947 (hereinafter referred to as the "Act, 1947") before Regional Labour Commissioner (Central), Lucknow (hereinafter referred to as the "RLC") for recovery of Rs. 2,01,654/- alongwith 18% interest. A show cause notice was issued by RLC on 29.05.2009, whereagainst Bank came to this Court in Writ Petition No. 3446 (MS) of 2009, (hereinafter referred to as the "third petition"), challenging show cause notice issued to it seeking compliance of award dated 30.04.1997 to the extent compensation has been allowed to workman.
22. The amount of Rs. 2,01,654/- mentioned in show cause notice is amount of compensation claimed by petitioner towards his salary from period of December, 2007 to August, 2008. The Bank objected said claim but simultaneously has come to challenge show cause notice by filing "third petition". Relief sought by Bank in "third petition", read as under:
"a. To issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 29.05.2009 as contained in Annexure-1 to the writ petition issued by Opposite Party No. 1.
b. To issue a writ, order or direction in the nature of mandamus commanding the Opposite Party No. 1 not to proceed with the said Claim bearing No. LKO-15(03)/08-Radhey Shyam Misra Vs. Regional Manager, Central Bank & Others filed by Opposite Party No. 2."
23. Again, it appears that, workman-Radhey Shyam Mishra moved an application under Section 33-C(i) of Act, 1947 in furtherance of award dated 30.04.1997 in Industrial Dispute No. 159 of 1990, seeking arrears of salary from 01.11.2008 to 30.09.2009 to the tune of Rs. 2,80,529.90. Thereupon RLC issued recovery certificate dated 02.05.2013 directing Collector, Gorakhpur to recover aforesaid amount from Bank, consequentially a citation dated 29.05.2013 was issued by Tehsildar, Sadar, Gorakhpur. Bank thus preferred Writ Petition No. 4328 (MS) of 2013 (hereinafter referred to as the "fourth petition"), challenging aforesaid recovery certificate and citation. Prayers made in "fourth petition" read as under:
"a. To issue a writ, order or direction in the nature of certiorari thereby quashing the impugned orders dated 02.05.2013 as contained in Annexure-1 & 2 passed / issued by Opposite Party No. 1 and citation dated 29.05.2013 as contained in Anneuxre-3 to the writ petition issued by Opposite Party No. 3.
b. To issue a writ, order or direction in the nature of mandamus commanding the Opposite Party No. 1 not to proceed with the claims of Opposite No. 1."
24. Two questions, which are of utmost importance and would have consequence in respect of all writ petitions, would be, "whether dismissal of petitioner is in accordance with law" and "whether CGIT has rightly upheld dismissal order despite holding that inquiry was not conducted by Bank in accordance with law".
25. I propose to consider aforesaid two questions first as that would go to the root of the matter.
26. It is evident from record that on 12.09.1991, CGIT framed certain preliminary issues as under:
"1) Whether Shri K.K. Singhal was properly appointed as an Enquiry Officer? If so, its effect?
2) Whether the Enquiry proceedings were conducted fairly and properly by the Enquiry Officer? If so, its effect.
3) Whether Shri K.K. Sharma the Disciplinary Authority, was justified in not considering the workman's application dated 18.8.84 moved before him for reopening the departmental Enquiry after changing the Enquiry Officer? If so, its effect?
4) Whether the charges contained in the Charge sheet dated April 29, 81 are not covered by the expression gross misconduct as defined in para 19.5 of the First Bipartite Settlement? If not its effect?"
27. CGIT while dealing preliminary issues has held in its order dated 29.12.1995 (Annexure-10 to first petition) that on 14.08.1984 there were some heated discussion between Inquiry Officer and Workman regarding asking of leading questions. Workman concerned then walked out by asking Inquiry Officer to defer proceeding as he wants change of Inquiry Officer. This request was turned down and Inquiry Officer concluded proceedings. Workman wrote letter dated 18.08.1984 to the Bank, requesting change of Inquiry Officer. This letter remained unheeded and unreplied by Bank. Inquiry Officer waited for petitioner, two and half months and then submitted report on 05.11.1984.
28. In this backdrop of facts on record, CGIT has observed, when there was an altercation between Inquiry Officer and Workman, principles of natural justice require that Inquiry Officer should have given opportunity to Workman to request Bank for change of Inquiry Officer and should not have concluded inquiry. It has also observed that Bank should have disposed of letter of Workman requesting for change of Inquiry Officer which it failed. It has also observed that MW-1, G.N. Dhawan stated in cross-examination that Workman's letter dated 18.08.1984 for change of Inquiry Officer was considered and rejected but not communicated to Workman at all. Having said so, CGIT has observed as under:
"This conduct of the management shows its mala fide intention in dealing with this letter of request. It would have been better for the management to have disposed it off as early as possible and further communicate the result to the concerned workman so that he would have made a request to the enquiry officer to atleast give his complete evidence in defence. In not following this course based on principles of natural justice, I am inclined to accept the version of concerned workman that he was denied his right of adducing evidence in defence. It in turn would vitiate the enquiry report.
The concerned workman has also drawn my attention towards the report. I find that it is laconic and sketchy. In this report passing reference of the earlier evidence has been made out no reasons whatsoever have been given for accepting the version of the management and not the version of the concerned workman.
Any way since the concerned workman has been denied right of defence it is held that enquiry was not fairly and properly held as such it is set aside." (emphasis added)
29. Thus, inquiry was held, illegal having not conducted fairly and in consonance with principle of natural justice. The result was that inquiry proceedings and subsequent orders failed. CGIT then proceeded to give an opportunity to Bank to prove charges against workman in view of what they had pleaded in para 72 of written statement filed by Bank.
30. At this stage it may be noticed that preliminary issue 1 has not been considered and answered by CGIT either in its order dated 29.12.1995, or in the impugned award. It relates to correctness of appointment of Inquiry Officer and since it has not been dealt with by CGIT by presuming that with regard to validity of appointment of Inquiry Officer the workman either did not press issue or fail to substantiate the issue so as to discharge onus lie upon him in this regard and issue with regard to correctness of appointment of Inquiry Officer stand decided against him.
31. Proceeding further to answer preliminary issue 2, CGIT held that workman was denied right of adducing evidence in defence and, therefore, inquiry report is vitiated. It also found that report is laconic and sketchy. Consequently it set aside report. It also did not specifically answer issues 3 and 4 as preliminary issue but having held the inquiry vitiated in law as denying opportunity of defence to workman, it allowed management to prove charges against workman before CGIT.
32. After getting opportunity of proving charge before CGIT, Management produced one witness A.R. Tripathi as MW-1. CGIT itself has mentioned in para 4 of impugned award that no documents were proved. Workman in rebuttal examined himself as WW-1 and relied on documents W-1 to W-45.
33. CGIT has categorically held that Charge 1 is not proved and Charge 2 is vague as nothing has been shown as to what political pressure was sought to be exerted by Workman, therefore, impugned award apparently rests on Charge 3 only. Charge 3 reads as under:
"On 6th January 1981, Mr. Misra visited Divisional Office, Gorakhpur to submit certain papers and while delivering the same to Dy. Chief Officer Sri R.N. Ghosh, he was found quite aggressive and he passed most indecent remarks for all the officers of Bank right from top to bottom. The exact version of his utterance is as under:
"LIZIYE ISKO RECEIVE KARIYE CENTRAL BANK KE SAB ADHIKARI UPER SE NICHE TAK GHUSKHORE HAIN".
Mr. Misra passed this remark in the presence of our other Dy. Chief Officer Shri A.P. Tripathi. When Mr. Tripathi took exception of this, Mr. Misra quietly left the office."
34. I may be noticed at this stage that in the charge-sheet charges as such are not numbered but the manner in which parties have read charge-sheet, it is admitted by both sides that there are three different charges and para 3 of charge-sheet (Annexure-12 to first petition) constitute first charge, para 4 constitute second charge and para 5 and 6 constitute third charge. The charge alleged that petitioner made general allegations against all officers of Bank that they are all corrupt and takes bribe.
35. The deposition of Sri A.P. Tripathi, MW-1 (Enclosure-20 to first petition). In his Examination-in-Chief he has deposed as under:
^^fnukad 6&1&1981 dks eSa {ks=h; dk;kZy; esa mieq[; vf/kdkjh FkkA ml le; vkj-,u- ?kks"k Hkh esjs dk;kZy; esa mieq[; vf/kdkjh FksA lEcfU/kr Jfed esjs dk;kZy; esa vk;s vkSj dgk fd esjs }kjk izLrqr fd;s x;s i= dks yhft;s vkSj bldks fjlhc dhft;s vkSj ;g Hkh dgk fd cSad esa Åij ls uhps rd lc vf/kdkjh ?kwl[kksj gSaA bldh fjiksVZ eSaus phQ eSustj dks fd;k FkkA** "On 06.01.1981 I was Deputy Chief Officer in the Regional Office. At that time R.N. Ghosh was also Deputy Chief Officer in my office. The Workman concerned came in my office and said that take and receive the letter presented by me and also that all the officers of Bank from top to bottom are corrupt. I had reported this matter to the Chief Manager."
(English translation by the Court)
36. In cross-examination he admits that Workman neither had any shuffle with witness nor with Sri R.N. Ghosh, Deputy Chief Officer, whose office Workman had visited on 06.01.1981. He also said, when alleged statement was made by Workman levelling general allegations against all officers, besides witness and Sri R.N. Ghosh, Deputy Chief Officer, 2-3 other persons were also present but only witness MW-1 and Sri R.N. Ghosh reported matter. It is in view of aforesaid evidence of MW-1 Charge 3 has been held proved by CGIT. It has recorded finding as under:
"Hence I accept the version of the management and disbelieve the version of the concerned workman and come to the conclusion that the concerned workman had spoken the words as contained in the charge which certainly is a misconduct as envisaged by para 19.5(c) of First Bipartite Settlement."
37. The CGIT has taken aforesaid conduct of petitioner as constituting misconduct under Clause 19.5 (c) of First Bipartite Settlement.
38. This Court will also examine thus, whether allegations levelled against petitioner attract Clause 19.5 (j), (k) and (l) as levelled in charge-sheet and also whether Management adduced evidence so as to justify punishment of dismissal as upheld by CGIT.
39. Relevant Clause 19.5 of First Bipartite Settlement defines term "gross misconduct" reads as under:
"19.5 By the expression "gross misconduct" shall be meant any of the following acts and omissions on the part of an employee:
(a) engaging in any trade or business outside the scope of his duties except with the written permission of the bank;
(b) unauthorised disclosure of information regarding the affairs of the bank or any of its customers or any other person connected with the business of the bank which is confidential or the disclosure of which is likely to be prejudicial to the interests of the bank;
(c) drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank;
(d) wilful damage or attempt to cause damage to the property of the bank or any of its customers;
(e) wilful insubordination or disobedience of any lawful and reasonable order of the management or of a superior;
(f) habitual doing of any act which amounts to "minor misconduct" as defined below, "habitual" meaning a course of action taken or persisted in notwithstanding that at least on three previous occasions censure or warnings have been administered or an adverse remark has been entered against him;
(g) wilful slowing down in performance of work;
(h) gambling or betting on the premises of the bank;
(i) speculation in stocks, shares, securities or any commodity whether on his account or that of any other persons;
(j) doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss;
(k) giving or taking a bribe or illegal gratification from a customer or an employee of the bank;
(l) abetment or instigation or any of the acts or omissions above-mentioned."
40. According to learned counsel for the Bank conduct of petitioner constituted "disorderly" and "indecent behaviour" on premises of Bank. The witness has admitted that there was no otherwise conduct shown by Workman. He simply asked official concerned to receive his letter and said that all officers of Bank, from top to bottom, are corrupt. Statement made by Workman by itself may amount to vague and general allegations against officers of Bank but the Court finds it difficult to accept that utterances of these words in a quite and calm atmosphere may satisfy the terms "disorderly" and "indecent behavour".
41. Term "disorderly" has been defined in "Oxford English-English-Hindi Dictionary", published by Oxford university Press at page 343 as "out of control and violent; causing trouble in public".
42. In "The New Lexicon Webster's Dictionary of the English Language", Lexicon Publications, Inc. New York, 1987 at page 272 word "disorderly" has been defined as "unruly, wild, untidy, violating public order".
43. In P. Ramanatha Aiyar's "Advanced Law Lexicon" The Encyclopaedic Law Dictionary with Words & Phrases, Legal Maxims and Latin Terms, 4th Edition, Volume 2, D-I, page 1450, term "disorderly" has been defined, "Not regulated by the restraints of morality; not complying with the restraints of law or social order; confused or out of order; 'lawless' or contrary to good morals; as, disorderly behaviour".
44. Similarly, term "indecent behavour" has been defined in P. Ramanatha Aiyar's "Advanced Law Lexicon" (supra) at page 2359 as "riotous, violent or indescent behaviour, to put it quite generally, within the genus of creating a disturbance in a sacred place".
45. Uttering words that "all officers from top to bottom in the Bank are corrupt" can neither be termed as unruly, wild, untidy words violating public order nor can be said to be contrary to restraints of law or social order etc. so as to constitute a disorderly behaviour. The term "indecent behaviour" has a similar species to disorderly behaviour but may also be extended to a behaviour which is not decent in the view of public at large but aforesaid utterances by workman, in my view, are short of satisfying the words, "indecent behaviour".
46. In L.K. Verma vs. H.M.T. Ltd. and Anr., 2006(2) SCC 269 a similar clause in conditions of service using words "drunkenness", "riotous" or "disorderly" or "indecent behaviour" came to be considered. The charge was that of abuse by using filthy language. The Court held that utterances lack civility, hence aforesaid clause was attracted. This shows that term "indecent behaviour" cannot be construed to every utterance which is find objectionable by Management or which is not in good test or which makes some allegations to officers in the Bank in general without naming or identifying anyone.
47. Construing Standing Orders the Court in Glaxo Laboratories (I) Ltd. vs. Presiding Officer, Labour Court, Meerut and Ors., AIR 1984 SC 505 held that penal provisions must receive a strict construction and not to be extended beyond their normal requirement. The clause contained in conditions of service should not receive such broad construction as to render the words used therein redundant. When Standing Orders are framed the intention is that workman should know what acts or omissions or commissions would constitute misconduct. Once Standing Orders are framed the ordinary meaning of the terms used therein is not to be extended to certain acts, omissions or commissions so as to constitute a misconduct which is neither extended nor included in the clear terms of words used in conditions of service.
48. The statement uttered by Workman also cannot be construed as abuse to any senior officer of the Bank. Having given my anxious consideration and serious thoughts not only to Clause 19.5 but all other sub-clauses of First Bipartite Settlement, I find that conduct of petitioner-Workman in uttering aforesaid words cannot be construed to be a "gross-misconduct" as defined under Clause 19.5 of First Bipartite Settlement. At the best it may be brought within the precincts of Clause 19.7 (e) which is a provision explaining "minor misconduct".
49. In the present case, CGIT has completely failed to examine the fact whether utterances by workman would satisfy in all terms under Para 19.5 of Bipartite Settlement. In fact the charges relating to alleged gross-misconduct under Para 19.5 (j) and (k) have been held not proved by CGIT. The charge in respect of utterances of indecent remarks have been sought to be justified with reference to Para 19.5 (c) which talks of drunkenness which is not the case in hand or riotous which is also not the case in hand.
50. Learned counsel appearing for Bank sought to bring charge 3 held proved by CGIT within the terms "disorderly" or "indecent behaviour" used in Para 19.5(c) of Bipartite Settlement but as discussed above I find it difficult and has no hesitation in holding that it would not be covered by Para 19.5(c) at all. No other sub-clause of Para 19.5 is shown to have attracted in respect of Charge 3 which has been held proved by CGIT. Since basic question which goes to root of the matter has not been attended by CGIT despite the fact that it framed preliminary issue 4 in this regard, in my view, it vitiates entire award and not sustainable in law.
51. Even otherwise, since this Court is of the view that alleged utterances of workman does not come within the term "gross-misconduct" as defined under Para 19.5 of Bipartite Settlement, question of imposition of major penalty upon workman does not arise and it renders impugned order of punishment of dismissal which is the maximum punishment permissible under rules cannot be justified. I, therefore, answer both questions formulated by this Court in favour of workman and against Bank.
52. I also propose to examine the question of proportionality of punishment discussed in para 11 of the award the Court also finds that CGIT has looked into the factum that Workman was earlier charge-sheeted and punished.
53. I do not find any material on record placed before CGIT wherefrom it could be discerned that Workman was earlier punished since no documentary evidence was proved before CGIT and the sole witness examined by CGIT made his statement about Charge 3. He did not utter a single word about alleged earlier punishments etc. The entire discussion in para 11 of award is based on no evidence whatsoever. CGIT has discussed something in para 11 ignoring the fact that it has already held inquiry conducted against petitioner-Workman as mala fide, illegal and in violation of principle of natural justice and then gave opportunity to Management to prove charges against Workman before CGIT. Management failed to prove charges 1 and 2. Only Charge 3 has been found proved by CGIT which has itself admitted that Management did not adduce or prove any documentary evidence and entire attempt to prove charge was founded on sole deposition of MW-1, A.P. Tripathi, which was in concerned with Charge 3. Therefore, even findings recorded by CGIT to justify major penalty of dismissal upon Workman is neither based on any evidence nor even otherwise is legally justified in view of the discussion made above that utterances of words as stated in Charge 3 do not amount to "gross-misconduct" under Clause 19.5 of First Bipartite Settlement.
54. Learned counsel appearing for Bank has placed reliance on decisions of Apex Court in Mahindra & Mahindra Vs. N.B. Narwade, 2005(3) SCC 134 and L.L.K. Verma Vs. H.M.T. Ltd. and another, 2006(2) SCC 269 in support of his submission that if Workman has used abusive language against superior officers of Bank, punishment of dismissal is justified.
55. Abuse is a different thing than levelling allegation which is claimed to be without any foundation or basis. The allegations constituting utterances of some act or omission in respect of something which is not legal, by itself cannot be said to be an abuse. What is known in common parlance an "abuse" is something different than mere allegation. Here Workman levelled allegation of corruption in general against officers of Bank to which CGIT has observed that it was without any basis but allegation by itself cannot be said to be an "abuse". Here Workman was not charged of using intemperate abusive language against Officers but the charge is that he levelled serious allegation against Officers of Bank. Any allegation of disturbance caused by petitioner in Bank or intemperate conduct shown in the office has not been proved but witness only says that he uttered without creating any otherwise riotous or unruly scene. Therefore, mere utterance of aforesaid words has been proved and nothing more than that. Thus even otherwise charge as such is neither proved nor it can be said that petitioner has abused or used abusive language. The two authorities, therefore, relied on behalf of Bank are not applicable in the case in hand.
56. Learned counsel for Bank then submitted, when there is a charge of integrity and honesty in Bank services, and is proved, actual monatory loss is not assessed. He placed reliance on Apex Court's decision in State Bank of India and another Vs. Bela Bagchi and others, 2005(7) SCC 435. The submission is thoroughly misconceived inasmuch as there is no charge involving integrity and honesty of petitioner in Banking service, therefore, above judgment in State Bank of India and another Vs. Bela Bagchi and others (supra) would have no application to the case in hand.
57. It is then contended that past conduct can be considered for punishment and reliance is placed on Government of Andhra Pradesh and others Vs. Mohd. Tahir Ali, 2007(8) SCC 656 but I find that even this judgment does not help Bank's counsel for the reason that no evidence was adduced before CGIT with respect to alleged past conduct of petitioner. In absence of any evidence there is no question of referring to alleged past conduct on the basis of mere pleadings.
58. The further submission is that, Court cannot assess evidence like Appellate Authority or adequacy of evidence in departmental proceedings cannot be examined by Court and it cannot substitute its own view to the view taken by Tribunal. This submission is also fallacious, inasmuch as if Workman is sought to be punished for an allegation which does not constitute "gross-misconduct" as defined under relevant conditions of service and/ or if there is no evidence whatsoever or that the Workman has sought to be punished on allegations which are not part of charge, it is within the competence of this Court, in exercise of jurisdiction under Article 226 of the Constitution, to interfere and set aside such order of punishment.
59. In view of above discussion order of dismissal passed against petitioner, upheld by CGIT, cannot be sustained. The "first petition" is bound to succeed.
60. Now comes the question of compassionate allowance payable to petitioner under Regulation 12 of Regulations, 1993, which is the subject matter of "second petition".
61. Considering the fact that order of dismissal is being set aside by this Court, question of compensation allowance under Regulations, 1993 does not arise. It is in these facts and circumstances I find no reason to go into further question, whether Regulations, 1995 have rightly been invoked by Bank to negate claim of petitioner for compassionate allowance for the reason that neither Regulations, 1993 nor Regulations, 1995 are attracted once order of dismissal disappear. "Second petition", therefore, deserves to fail.
62. In third petition, Bank has challenged only a show cause notice pursuant to award dated 30.04.1997, impugned in "first petition". Though against a show cause notice normally writ petition is not to be entertained but since in present case award dated 30.04.1997 itself is being set aside, question of its compliance for the purpose of payment of compensation awarded therein does not arise. Show cause notice, therefore, cannot be sustained. In the result, "third petition" deserves to succeed.
63. Now remains "fourth petition" wherein recovery certificate and citation issued by RLC for recovery of Rs. 2,80,529.90 towards salary from 01.11.2008 to 30.09.2009, issued on an application moved under Section 33-C(i) of Act, 1947 is under challenge. This application was also filed by Workman in furtherance of award dated 30.04.1997, which is being set aside by this judgment. In view thereof, question of recovery of any amount pursuant to said award also does not arise. The "fourth petition", therefore, deserves to succeed.
64. In view of discussions made above the aforesaid writ petitions are decided in the following manner:
(I) Writ Petition No. 1292 (SS) of 1998 is hereby allowed. The award dated 30.04.1997 passed by Central Government Industrial Tribunal is hereby set aside. Further, dismissal order dated 22.04.1985 and appellate order dated 19.02.1986 are also set aside. Petitioner shall be entitled to all consequential benefits except arrears of salary which, in my view, would be payable to petitioner-Workman to the extent of 50% only since he has not worked with Bank after his dismissal from service till date. However, period from order of dismissal till date or till retirement, if in the meantime petitioner has retired, shall qualify for all purposes including retiral benefits.
(II) Writ Petition No. 5860 (SS) of 2002 is dismissed.
(III) Writ Petition No. 3446 (MS) of 2009 is hereby allowed. The impugned show cause notice dated 29.05.2009 issued by Regional Labour Commissioner, Lucknow is set aside.
(IV) Writ Petition No. 4328 (MS) of 2013 is allowed. Recovery certificate dated 02.05.2013 issued by Regional Labour Commissioner, Lucknow as well as citation dated 29.05.2013 issued by Tehsildar Sadar, Gorakhpur are hereby set aside.
65. In the peculiar facts and circumstances of the case, parties shall bear their own costs.
Dt/-15.02.2016 AK