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W.P. No.13571W of 2009 of Kolkata High Court (Appellate side)

delivered by Justice Girish chandra Gupta


Bank of India


Central Govt. Industrial Tribunal & others

on  16 june 2010

The judgement is attached herewith



                                CONSTITUTIONAL WRIT JURISDICTION 
Hon’ble Justice Girish Chandra Gupta 
W.P. No.13571W of 2009 
Advocate for the petitioner: Mr. R.N. Mazumder 
Ms. Reshmi Mukherjee 
Advocate for the respondent No.2:Mr. Swarup Paul 
Hearing concluded on:  3
 May, 2010 
Judgment delivered on: 16
 June 2010 
GIRISH CHANDRA GUPTA J.-The subject-matter of challenge, in this writ 
petition, by the employer, is an award dated 23
 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
 April 1988.  On 24
 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
 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
 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
September 1996 and 20
 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
 February 1997 the credit card appears to have been 
used only on 27
 March 1998 in meeting two bills of a hotel.  The bank has disclosed 
letters dated 10
 January 1997, 27
 January 1997, 5
 February 1997 and 7
1997 calling upon the workman to pay up the dues.  The letter dated 7
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
 November 1997 a charge sheet was issued to the workman alleging 
that he had misused the India Card issued on 24
 August 1996 and had incurred 3  
liability to the extent of Rs.2,11,760.15 paisa as at 30
 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 
An enquiry was conducted wherein he was found guilty of the aforesaid charge 
and an order of dismissal was passed on 31
 March 1998. An appeal preferred by the 
workman was dismissed by an order dated 7
 August 1998.  The petitioner 
challenged the order of dismissal by way a writ petition which culminated in an order 
dated 20
 November 2003 by which the matter  was relegated to the Industrial 
Tribunal.  On 14
 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 
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
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
 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
 January 2010 wherein the following statements have been 
“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. 
 The alleged confession relied upon by Mr. Majumdar is to be found in the 
letter dated 30
 March 1998 addressed by the workman to the disciplinary authority 
in reply to the second show-cause notice dated 25
 March 1998.  The second showcause notice dated 25
 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
 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
 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
 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. 
 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. 



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