DEVELOPMENT CREDIT BANK LIMITED Vs. AZIM A CHARANIA

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the petitioner seeks a writ of certiorari quashing the Part-1 Award dated 3-2-2000 given by Central Government Industrial Tribunal No. II at Mumbai in Reference No. CGIT-2/45 of 1998.

(2.) THE petitioner earlier operated as Development Co-operative Bank Limited but has been converted into a Joint Stock Company known as Development Credit Bank Limited w. e. f. 1-6-1995. The respondent joined the predecessor of the petitioner as a Clerk in 1979. He was progressively promoted as Supervisor, Assistant Officer and, in the year 1988 as an Officer. His qualifications are B. Com. L. L. B. (Gen. ). The respondent was also imparted training and was thus well versed in the Banking operations of various departments of the petitioner-Bank. The respondent was also the General Secretary of the Union and, therefore, had the opportunity to defend employees working in the petitioner Bank in the enquiries. According to the petitioner, the respondent is an expert with regard to the rules and regulations of the Bank. The respondent was working as an Officer at Mohammed Ali Road Branch of the petitioner Bank. On a number of occasions the petitioner has reported for duty rather late. The respondent has disobeyed the written instructions which were issued on 22nd June, 1995. By this letter he was directed to take charge of the Current Accounts Department. The petitioner requested that the instructions be issued in writing. These instructions were issued to him in writing on 27th June, 1995 and 4th July, 1995. Thereafter by his letter dated 4th July, 1995 the respondent is stated to have made false allegations against the petitioner Bank. The respondent also called upon the petitioner Bank to clarify the nature of duties of the Officers cadre to be performed in the Current Accounts Department. By letter dated 5th July, 1995 the petitioner Bank supplied the necessary list of duties to be performed in the Current Accounts Department by an Officer. The respondent by his letter dated 9th July, 1995 informed the petitioner Bank that the duties enumerated were not of an officer but are managerial and administrative in nature and not connected with his designation. Since he was not working in that post he would not accept the duties and responsibilities. The respondent did not take charge of the Current Accounts Department. He was reporting late for duty from 22nd June, 1995 till 1st July, 1995. The respondent was also remaining absent without prior permission or intimation from 3rd July, 1995. On 14th July, 1995 the respondent was asked to report for duty within 3 days. Respondent, however, by his letter dated 22nd July, 1995 alleged that he was being marked absent and not allowed to resume duties by the petitioner Bank. He was insisting that he would report only to the Cash Book and Reconciliation Department and not to the Current Accounts Department. It is the case of the petitioner that the Bank, therefore, decided to conduct an enquiry. A charge-sheet was issued on 7th September, 1995 to the following effect. i) Wilful insubordination or disobedience of any lawful and reasonable order of the superior. (ii) Absence without leave for more than 10 consecutive days. (iii) Late attendance for not less than 4 occasions within a month; and (iv) Commission of any act subversive of discipline or good behaviour on the premises of the establishment. Mr. M. V. Mulik was appointed as the Enquiry Officer. Mr. Mulik is not an employee of the petitioner Bank. The respondent though legally trained and well versed in enquiry proceedings was allowed to be represented by a practising Advocate Mr. German I. Fernandes. The petitioner Bank also appointed Mr. B. V. Itty as the Presenting Officer and Mr. N. B. Bijoor as the Advocate for the Bank. The respondent and his defence representative sought adjournments under one pretext or the other raising frivolous objections. According to the petitioner, as a result, for the first 15 sittings no effective enquiry proceedings could be held till 15th May, 1996. On 16th May, 1995, the respondent sought adjournment of the enquiry till re-opening of the High Court on the spacious ground that his Advocate will not be available. The respondent was directed to make alternative arrangements well in advance and was duly intimated about the enquiry on 20th May, 1996 which he attended. However, respondent walked out of the enquiry proceedings. The Enquiry Officer was, therefore, constrained to complete the enquiry proceedings and submitted the report and finding on 23rd May, 1996 holding the respondent guilty of charges levelled against him. A copy of the report and findings of the Enquiry Officer was sent to the respondent by letter dated 24th May, 1996. The respondent submitted a reply on 25th May, 1996. The Disciplinary Authority after considering the charge-sheet, enquiry proceedings, report and findings of the Enquiry Officer, the respondents submissions dated 25th May, 1996 and his past record, finding no extenuating circumstances passed an order dismissing the respondent without notice with immediate effect from the date of the order i. e. 28th May, 1996. The respondent preferred an appeal by letter dated 15th June, 1996. The Appellate Authority, after giving a personal hearing upheld the punishment of dismissal of respondent. According to the petitioner, the Vice President of the Union raised an industrial dispute about the dismissal of the respondent which was referred to the Tribunal by the Govt. of India by its order of Reference dated 3rd April, 1998. Pursuant to the order of reference, respondent filed an application on 26th June, 1988 as General Secretary of the Union seeking an adjournment to file the Statement of Claim on the ground that the records of the Union are not readily available. The respondent also filed the Statement of Claim again in the capacity as a General Secretary of the Union on 17th July, 1998. Petitioner Bank filed written statement on 19th August, 1998, inter alia, raising preliminary objection that the respondent had no locus standi as General Secretary to file statement of claim on behalf of the Union and that he was not a workman under section 2 (s) of the Act. Evidence of the respondent as well as the petitioner was taken by affidavit and treated as examination-in-chief. The Tribunal after hearing the parties passed the Part-I Award on 3rd February, 2000 on preliminary issues and objections of the petitioner bank. It is this Award that is challenged in this writ petition. The issues framed by the tribunal and the findings are as under.

(3.) THE Reference of the Industrial Dispute made by the Central Government is as follows : no. L-12012/197/97-IR (B. I) WHEREAS the Central Government is of the opinion that an industrial dispute exists between the employers in relation to the management of Development Credit Bank Ltd. , Mumbai and their workmen in respect of the matters specified in the Schedule hereto annexed. AND WHEREAS the Central Government considers it desirable to refer the said dispute for adjudication; now, THEREFORE, in exercise of the powers conferred by Clause (d) of sub-section (1) and sub-section (2a) of section 10 of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby refers the said dispute for adjudication to the Central Government Industrial Tribunal, II, Mumbai. The said Tribunal shall give its award within a period of 6 months. THE SCHEDULE "whether the action of Bank Development Credit Bank Ltd. , Mumbai, terminating the services of workman Shri A. A. Charania without observing the principles of natural justice and non payment of wages to the workman Shri A. A. Charania since July, 1995 is justified, if not, what relief should be granted. ?"