The judgement is attached herewith
1
FORM NO.(J2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Present:
Hon’ble Justice Girish Chandra Gupta
W.P. No.13571W of 2009
BANK OF INDIA
VS.
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL & ORS.
Advocate for the petitioner: Mr. R.N. Mazumder
Ms. Reshmi Mukherjee
Advocate for the respondent No.2:Mr. Swarup Paul
Hearing concluded on: 3
rd
May, 2010
Judgment delivered on: 16
TH
June 2010
GIRISH CHANDRA GUPTA J.-The subject-matter of challenge, in this writ
petition, by the employer, is an award dated 23
rd
February 2009 passed by the Central
Industrial Tribunal at Calcutta holding the workman not guilty of the charge under
Clause 19.5(j) of the bipartite settlement.The Tribunal has consequently set aside the
order of dismissal passed by the disciplinary authority and has directed reinstatement
with 50% of the back wages. The workman has made a counter-claim seeking
payment of 100% back wages.
The facts and circumstances of the case briefly are stated as follows:-
The workman Shri Anajn Kumar Lahiri, a clerical staff, was employed by the
petitioner-bank in the year 1971. The petitioner Indian bank introduced a credit card 2
scheme on 15
th
April 1988. On 24
th
August 1996 the workman applied for a credit
card which was duly sanctioned with a spending limit of Rs.20,000/-. After the
credit card was made functional in September 1996, the workman, it appears, used
the card quite lavishly, considering his station in life, in meeting bills of the bars and
restaurants. On 4
th
October 1996 the workman lodged a complaint with the Jadavpur
Police Station stating, inter alia, that he had been trapped by anti-social elements who
had been threatening him of dire consequences including kidnapping of his minor
daughter on the way to her school unless they were entertained by him in hotels and
restaurants of their choice. A copy of the complaint dated 4
th
October 1996 was also
endorsed to the Chief Manager, Bank of India. On5th October 1996 the workman
wrote a letter to the Zonal Manager, Bank of India, requesting him to cancel the
credit card issued to him considering that he had fallen prey to the anti-social
elements. Neither the police nor the bank appear to have taken the complaint of the
workman seriously. The resultant effect was that during the period between 12
th
September 1996 and 20
th
February 1997 the credit card was used on as many as 126
occasions in meeting bills of the restaurants and hotels including five star hotels, for
the major part of it. After 20
th
February 1997 the credit card appears to have been
used only on 27
th
March 1998 in meeting two bills of a hotel. The bank has disclosed
letters dated 10
th
January 1997, 27
th
January 1997, 5
th
February 1997 and 7
th
February
1997 calling upon the workman to pay up the dues. The letter dated 7
th
February
1997 contained the following significant ultimatum:-
“Hence, you are advised to pay the entire amount of TOD with
interest immediately otherwise it will be viewed by us seriously
and you may be liable for discipilnary action as per rule.”
On 13
th
November 1997 a charge sheet was issued to the workman alleging
that he had misused the India Card issued on 24
th
August 1996 and had incurred 3
liability to the extent of Rs.2,11,760.15 paisa as at 30
th
September 1997 and failed to
repay the same inspite of reminders. The aforesaid act of the workman was
considered to be a gross misconduct under para 19.5(j) which reads as follows:-
“doing any act prejudicial to the interest of the Bank or gross
negligence involving or likely to involve the Bank in serious
loss.”
An enquiry was conducted wherein he was found guilty of the aforesaid charge
and an order of dismissal was passed on 31
st
March 1998. An appeal preferred by the
workman was dismissed by an order dated 7
th
August 1998. The petitioner
challenged the order of dismissal by way a writ petition which culminated in an order
dated 20
th
November 2003 by which the matter was relegated to the Industrial
Tribunal. On 14
th
June 2004 a reference was made by the Central Government. The
issue formulated was as follows:-
“Whether the action of the management of Bank of India (Eastern
Zone) 5 B.T.M. Sarani, Kolkata-700001 in dismissing Shri Anjan
Kumar Lahiri, Accounts Clerk from the service is legal and
justified? If not, what relief the concerned workman is entitled
to?”
In paragraph 13 of the statement of claim filed by the workman before the
Tribunal the following amongst other allegations were made:-
“That Sir, the workman states that under such adverse
circumstances there was no other alternative by the workman to
lodge a complaint before the local Police Station on October 4
th
,
1996 being General Diary Entry No.253 for his family protection
and a copy of the same complaint was forwarded to the Chief
Manager, Bank of India, Kolkata Branch, the issuing branch of 4
the Card along with a letter stating inter alia to stop the India Card
facility issued in favour of the workman by the Employer Bank
and the copies have been forwarded to India Card Department,
Head Office in time for taking necessary steps but the Employer
Bank has not taken any action to stop the facilities or to reply to
his letter and allow to use the card facility.”
The aforesaid allegations were dealt with by the bank in its written statement
filed before the Tribunal as follows:-
“With reference to paragraphs 12 and 13 of the written statement
of the workman concerned, it is stated that the contentions as
made by the workman concerned are without any basis and
afterthought. In any event, the said contentions even assuming
for argument sake but not admitted are correct that does not
absolve the workman concerned of the charges of misconduct
committed by him. Save as aforesaid and save as what are
matters of record, the allegations to the contrary made in the said
paragraph are denied and disputed.”
Before the Tribunal evidence was laid by both the parties. The bank examined
Shri Dipak Kumar Bhattacharyay, the enquiry officer, as the manangement witness
no.1 who in his cross-examination deposed, inter alia, as follows:-
“I do not remember whether the management has produced the
terms and conditions of issuance of Bank’s India Card. I know
the terms and conditions of use of India Card. I do not know
whether in the terms and conditions except charging of interest
any other punishment is mentioned. Ext. W-5 was shown to the
witness to which it is stated that the paper shown is not the terms
and condition, it is merely an application form.” 5
He also deposed in his cross-examination as follows:-
“It is true that all the terms and conditions was not printed on the
application form itself. However, at the time of issue of cards all
the applicants were appraised about the terms and conditions
before getting their applications processed and sanctioned. It is
likely that due to this operational problem at a later date the Bank
got the terms and conditions printed on the application form itself.
Q. Out of Rs.2,21,000/- the Bank has realised an amount of
Rs.1,41,000/- as interest. Is it a major misconduct on the part of
the workman?
A. Yes. I consider it to be so.
Clause 19.5j of the Bipartite Settlement is applicable to the
workman. The workman is guided by the bipartite settlement.
I have no idea if the workman was given any charge sheet or
show cause during his service life apart from this charge sheet.
Q. If sanction limit is Rs.20,000/-, how the Bank has passed the first
bill of Rs.30,000/- and subsequent bill of Rs.66,000/-, Rs.41,000/-
, Rs.46,000/- and Rs.16,000/-.
A. For staff members this is the benefit and this is the danger also
wherein many liberty was taken by the staff at the same time at
every point of time they have to see that Bank’s interest is
protected. Had it been a case of a customer, Bank would have
taken appropriate steps but using the card in a span of one month
to the extent of Rs.1,30,000 or so by a staff member could not be
anticipated by the Bank because Bank expects each and every
staff member to act in a bonafide manner and added to the rules.
I have no comment about the salary paid to the workman.”
The workman relied on certain terms and conditions of the card issued to him a
copy whereof is at page 177 of the writ petition. The Bank did not however accept
that the same constituted the terms and conditions of the card issued to the workman. 6
The bank on the contrary relied on a Branch Circular No.91/20 dated 3
rd
May 1997
by which the Branch Manager was informed that creation of overdraft on account
usage of India Card would amount to an act of misconduct. In paragraph 6 thereof
there is a mandate that the aforesaid circular should be brought to the notice of all
defaulting staff members. My attention was not drawn to any document by which
the aforesaid circular may have been brought to the notice of the workman. In any
event this was not very important because 99% of the claim of the bank for use of the
card is for the period between September 1996 and February 1997.
Mr. Majumdar, learned Advocate appearing for the petitioner bank relied on
the credit card scheme appearing at page 151 of the writ petition for the terms and
conditions thereof which includes Clause 17.3 which reads as follows:-
“The Cardholders who fail to pay their overdrafts for more than
three months will be put in a HOT CARD BULLETIN which
cancels their cards and those of the add-on members.”
The learned Tribunal after considering the evidence in great detail came to the
following conclusion:-
“Considering all these above facts and circumstances, it is evident
that the act done by the workman, i.e., by use of India Card saying
it to be a misuse and also charging him for that as a gross
violation of the terms and conditions of the same, it does not
appear to be a case of fraud, theft or forgery or any such financial
loss to the Bank as the Bank admittedly got realized both the
principal sum together with the penal interest @k2.5% p.m. and
there remains nothing to be recovered from the workman in this
connection.” 7
Mr. Majumdar assailing the award submitted that the workman has admitted
that he was guilty of misconduct. Therefore the finding of the learned Tribunal is not
tenable and should be set aside.
Mr. Pal, learned Advocate appearing for the workman on the other hand
contended that the workman did never admit that he was guilty of any misconduct.
All that the workman, according to him, did was to pray for lesser punishment when
he found that the management was bent upon dismissing him from the service. Mr.
Pal added that the charge levelled against the workman was not proved. He was held
not guilty. Therefore the consequences of the wrongful dismissal suffered by the
workman should have been restored to him fully as far as the same was possible in
terms of money based on the principle of restitution.
Mr. Majumdar in reply made two fold submissions. He drew my attention to
paragraph 6 of the affidavit-in-reply affirmed on behalf of the bank by one Shri
Balasubrhamanium on 28
th
January 2010 wherein the following statements have been
made:-
“In any event, if the respondent was dissatisfied with the award in
so far as the same relates to denial of purported full back wages, it
was open to him to challenge that portion of the award by way of
a separate writ petition. The carriage of proceedings in the instant
writ petition is with the petitioner and the respondent no.2 cannot
derive any extra benefits in the instant writ petition that what had
been awarded by the Respondent Tribunal if ultimately the instant
writ petition is dismissed by this Hon’ble Court. It is submitted
that the main controversy centers around in the instant writ
petition whether the impugned award is justified or not. It is
therefore submitted that the claim for full back wages by way of
affidavit in opposition is not sustainable in law.” 8
The second submission was that there is no allegation before this Court that
the petitioner was not gainfully employed after his dismissal from the service of the
bank. This point raised by Mr. Majumdar was met by Mr. Pal by drawing my
attention to the application under Section 17B of the Industrial Dispute Act. He in
particular drew my attention to paragraph 5 thereof wherein it is alleged that ever
since the workman was dismissed he was surviving on charity.
The following questions therefore arise for determination:-
a) Did the workman confess that he was guilty of the misconduct? If so is the award
bad on that account?
b) Is the workman entitled to the relief of full back wages when the order of
dismissal from the service has been found to be illegal?
I propose to deal with the issues in the order they have been framed above.
a):
The alleged confession relied upon by Mr. Majumdar is to be found in the
letter dated 30
th
March 1998 addressed by the workman to the disciplinary authority
in reply to the second show-cause notice dated 25
th
March 1998. The second showcause notice dated 25
th
March 1998 contained the following material allegations:-
“The action of Shri Lahiri in raising the liabilities to such an extent
knowing fully well that he would not be in a position to make repayment
within 15 days definitely indicates that his intentions were not above
board. The bank being a financial institution can ill-afford to retain in
its roll persons whose integrity is doubtful. I also do not find any
extenuating or mitigating circumstances to view the matter leniently. I
am, therefore, of the view that ends of Justice would be met if Shri
Lahiri is imposed the punishment of Dismissal without notice under 9
Clause 21(iv)(a) of the Bipartite settlement dated 14.2.95 for his
aforesaid acts of gross misconduct as per para 19.5(j) of the Bipartite
Settlement dated 19.10.1966.”
The workman in his reply dated 30
th
March 1998 suggested various modes for
repayment of the dues of the bank and concluded by contending as follows:-
“In the light of the above premises, I hope you will be kind enough to
accept one of the above proposals so that I can clear debts. I also
request you to treat my lapse as a minor misconduct under para 19.7(I)
instead of para 19.5(J) of the Bipartite Settlement. Your kind
consideration of my case will help me to remain in service and erase the
stigma from my unblemish service records of 27 years.”
It would at once become clear that there is no confession made by the
workman in respect of any misconduct under paragraph 19.5(J) of the bipartite
settlement for which he was charged. Reference in this regard may be made to
Section 24 of the Evidence Act which provides as follows:-
“Confession caused by inducement, threat or promise, when irrelevant
in criminal proceeding.- A confession made by an accused person is
irrelevant in a criminal proceeding, if the making of the confession
appears to the Court to have been caused by any inducement, threat or
promise, having reference to the charge against the accused person,
proceeding from a person in authority and sufficient in the opinion of
the Court, to give the accused person grounds, which would appear to
him reasonable, for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.”
The statement made by the workman in his letter dated 30
th
March 1998
indicated above was in answer to the second show-cause notice by which the
disciplinary authority had proposed to impose capital punishment on him. The so-10
called confessional statement was obviously made by the workman in order to avoid
the capital punishment of dismissal. A confession in order to be of any assistance to
the writ petitioner should have been made a) voluntarily and b) the confession should
have been with “reference to the charge against the accused”. He never confessed to
have committed the misconduct charged against him. His prayer for lesser
punishment treating his lapse a “minor misconduct” under para 19.7(I) was aimed at
securing an advantage and is therefore irrelevant under Section 24 of the Evidence
Act. In any event a confession in order to become operative needs some amount of
corroboration. Reference in this regard may be made to the judgment in the case of
Bharat vs. State of U.P. reported in 1971(3) SCC 950 wherein Their Lordships held
“that a true confession made voluntarily may be acted upon with slight evidence to
corroborate it”. In this case, far from any corroboration, there is even no evidence to
show that the bank suffered or was likely to suffer any loss by the alleged
misconduct of the workman. The finding of the learned Tribunal on the contrary is
that no amount is due to the bank. Mr. Mazumdar contended that no amount is due
to the bank because by dismissing the workman the bank has realised its dues which
would not have been possible otherwise. The dues of the bank were realised
admittedly from out of the money payable to the workman. Therefore the bank’s
dues were fully secured. There was no scope or likelihood of the bank suffering any
loss. Moreover if the bank had not allowed the credit limit of Rs.20,000/- to be
grossly overdrawn or had the bank cancelled the credit card pursuant to the request of
the workman made by the letter dated 5
th
October 1996 the unpleasant situation
would not have arisen at all. The first issue is therefore answered in the negative.
b): 11
The contention of Mr. Majumdar with respect to the second issue has been two
fold : a) propriety of such a relief being granted in this petition and b) with respect to
quantum of back wages.
As regards the question of propriety I see no reason why a counter claim
cannot be entertained.
A counter-claim in a suit is expressly permitted under Order VIII Rule 6(A) to
6(G) of the Code of Civil Procedure.
Rule 53 of the Calcutta High Court Writ Rules provides as follows:-
“Save and except as provided by these rules and subject thereto,
the procedure provided in the Code of Civil Procedure (Act V of
1908) in regard to suits shall be followed, as far as it can be
made applicable, in all proceeding for issue of a writ.”
A “justice-oriented approach” by the Courts has repeatedly been stressed by
the Apex Court. In the case of M.S. Grewal vs. Deepchand Sood reported in 2001(8)
SCC 151 Their Lordship held that where the liability arose out of negligence the writ
court was entitled to award damages. In paragraphs 27 and 28 of the aforesaid
judgment Their Lordship held as follows:-
“The decision of this Court in D.K. Basu v. State of W.B. comes
next. This decision has opened up a new vista in the
jurisprudence of the country. The old doctrine of only relegating
the aggrieved to the remedies available in civil law limits stands
extended since Anand J. (as His Lordship then was) in no
uncertain terms observed: 12
“The courts have the obligation to satisfy the social
aspirations of the citizens because the courts and the law
are for the people and expected to respond to their
aspirations. A court of law cannot close its consciousness
and aliveness to stark realities. Mere punishment of the
offender cannot give much solace to the family of the
victim- civil action for damages is a long-drawn and a
cumbersome judicial process. Monetary compensation for
redressal by the court finding the infringement of the
indefeasible right to life of the citizen is, therefore, useful
and at times perhaps the only effective remedy to apply
balm to the wounds of the family members of the deceased
victim, who may have been the breadwinner of the family.”
Currently judicial attitude has taken a shift from the
old draconian concept and the traditional jurisprudential
system-affectation of the people has been taken note of
rather seriously and the judicial concern thus stands on a
footing to provide expeditious relief to an individual when
needed rather than taking recourse to the old conservative
doctrine of the civil court’s obligation to award damages.
As a matter of fact the decision in D.K. Basu has not only
dealt with the issue in a manner apposite to the social need
of the country but the learned Judge with his usual felicity
of expression firmly established the current trend of
“justice-oriented approach”. Law courts will lose their
efficacy if they cannot possibly respond to the need of the
society- technicalities there might be many but the justiceoriented approach ought not to be thwarted on the basis of
such technicality since technicality cannot and ought not to
outweigh the course of justice.”
There is also no reason why the workman should not be allowed to raise his
grievance with respect to the relief which was refused by the Tribunal. Reference
may be made to the case of Hari Bux vs. Zoharmal reported in 33 CWN 711 wherein
a Division Bench of this Court took the following view:- 13
“So far as the final decree in a suit is concerned, there is no
reason for saying that the Plaintiff cannot approbate the
decree in respect of the sum it awards and reprobate it in
respect of the sum it refuses.”
The grievance of the workman with respect to the relief refused to him is well
founded in law. Reference in this regard may be made to the judgment in the case of
Hindustan Tin Works vs. Employees reported in 1979(2) SCC 80 wherein a threejudge bench of the Apex Court held in paragraph 9 that “Ordinarily, therefore, a
workman whose service has been illegally terminated would be entitled to full back
wages except to the extent he was gainfully employed during the enforced idleness”.
In paragraph 11 Their Lordships opined as follows:-
“In the very nature of things there cannot be a strait-jacket
formula for awarding relief of back wages. All relevant
considerations will enter the verdict. More or less, it would
be a motion addressed to the discretion of the Tribunal.
Full back wages would be the normal rule and the party
objecting to it must establish the circumstances
necessitating departure. At that stage the Tribunal will
exercise its discretion keeping in view all the relevant
circumstances. But the discretion must be exercised in a
judicial and judicious manner. The reason for exercising
discretion must be cogent and convincing and must appear
on the face of the record. When it is said that something is
to be done within the discretion of the authority, that
something is to be done according to the rules of reason
and justice, according to law and not humour. It is not to
be arbitrary, vague and fanciful but legal and regular (See
Susannah Sharp v. Wakefield, 1891 AC 173 at p.179). 14
With respect to the burden of proof in order to make a departure from the
normal rule of full back wages Their Lordship held in paragraph 12 of the judgment
as follows:-
“If the normal rule in a case like this is to award full back
wages, the burden will be on the appellant employer to
establish circumstances which would permit a departure
from the normal rule.”
In the case of Surendra Kumar vs. Industrial Tribunal reported in 1980(4) SCC
443 a three-judge bench of the Supreme Court discussed the reasons which may
weigh with the Court in making a departure from the normal rule of full back wages.
Thus opined Their Lordships “Plain common sense dictates that the removal of an
order terminating the services of workmen must ordinarily lead to the reinstatement
of the services of the workmen. It is as if the order has never been, and so it must
ordinarily lead to back wages too. But there may be exceptional circumstances
which make it impossible or wholly inequitable vis-à-vis the employer and workmen
to direct reinstatement with full back wages. For instance, the industry might have
closed down or might be in severe financial doldrums; the workmen concerned might
have secured better or other employment elsewhere and so on. In such situations,
there is a vestige of discretion left in the court to make appropriate consequential
orders. The court may deny the relief of reinstatement where reinstatement is
impossible because the industry has closed down. The court may deny the relief of
award of full back wages where that would place an impossible burden on the
employer. In such and other exceptional cases the court may mould the relief, but,
ordinarily the relief to be awarded must be reinstatement with full back wages. That
relief must be awarded where no special impediment in the way of awarding the
relief is clearly shown. True, occasional hardship may be caused to an employer but 15
we must remember that, more often than not, comparatively far greater hardship is
certain to be caused to the workmen if the relief is denied than to the employer if the
relief is granted.”
In the case of P.V.K. Distillery Ltd. vs. Mahendra reported in 2009(5) SCC
705 Their Lordships granted only 50% of the backwages “because the appellant’s
factory had been declared sick and remained closed for many years and has been
assigned to a new management led by its Chief Executive Director, Sri M.K. Polania
in order to rehabilitate/reconstruct it”.
The learned Tribunal in the concluding part of its judgment and award held
that the workman was entitled to reinstatement in the service from the date of
dismissal and he is also entitled to get half of the back wages. There is not one word
as to why was the Tribunal of the view that the workman was entitled to only half of
the back wages and not the full back wages which is the normal rule. When the
Tribunal was of the view that the order of dismissal was bad and illegal then it was
the duty of the Tribunal to make restitution as far as possible in the light of the law
discussed above.
I am of the view that the injury inflicted by the illegal order of dismissal
cannot fully be compensated in any event. There is evidence on the record to show
that at the time when the petitioner was dismissed from service he had a minor
daughter to support besides his wife. The workman as soon as the card was issued to
him was entrapped by antisocial elements who forced him to entertain them in
luxurious hotels and restaurants. The helpless workman requested the employer to
cancel the card but his request remained unheeded. The spending limit granted to the
workman, as would appear from the documents disclosed by the writ petitioner itself, 16
was Rs.20000/-. The workman was allowed to incur expenditure far in excess of the
sanctioned limit without any repayment knowing that he had been entrapped by
antisocial elements.. His request to cancel the card was ignored. These factors go to
show unmistakably that the workman did not incur the expenses voluntarily or at any
rate he was actively aided and abetted in spending the money exceeding the limit of
his expenditure by no other than the employer himself. Thus the conduct of the
employer was equally if not more blameworthy.
There is no evidence before me to show that the workman was gainfully
employed during the period of his dismissal. The evidence on the record suggests
that he has been surviving on charity ever since he was dismissed from service.
Neither before the Tribunal nor before this Court did the employer discharge its
burden of proof in order to establish that the workman should not be given the
normal benefit of full back wages. There is as such no reason why the learned
Tribunal should have contented itself by granting only 50% of the back wages. Both
the points urged by Mr. Mazumdar with respect to the second issue are accordingly
answered. The second issue is therefore answered in the affirmative.
This writ petition, in the result, is dismissed and the counter claim is allowed.
The writ petitioner is directed to pay full back wages from the date of
dismissal until the date of reinstatement together with interest at the rate of 12% per
annum. Grant of interest is now a matter of procedure and ought to be granted in all
cases where there is a decree for money unless there are strong reasons to decline the
same ( See Jagdish vs. Union of India reported in 1999(3) SCC 257). The petitioner
shall also pay costs assessed at Rs.20,000/-. 17
Urgent xerox certified copy of this judgment be delivered to the learned
advocates for the parties, if applied for, upon compliance of all formalities.
(GIRISH CHANDRA GUPTA J.)
Later
Prayer for stay of operation of this judgment and order made by Mr. R.N.
Mazumdar, learned Advocate for the petitioner, is considered and rejected.
(GIRISH CHANDRA GUPTA J.)
