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Judgment
J.V. Gupta, J.—This writ petition is directed against the award of the Presiding Officer, Central Government Industrial Tribunal, New Delhi, dated May 20, 1983, whereby the workman Shri Pran Nath Chopra, Respondent No. 2, was allowed a sum of Rs. 50,000/- in lieu of back wages and reinstatement in service.
The workman joined the Allahabad Bank as a Clerk and worked for about 13 years. He was placed under suspension on October 5, 1970 and finally discharged from service on March 21, 1973, vide copy, Annexure P.4. A domestic enquiry was held against him by the management (the Petitioner Bank) but no disciplinary action as such was taken against him. He was discharged from service on March 21, 1973, as noticed above, in view of the provisions of paragraph 19.12(c) of the bi-partite settlement as noticed in paragraph 11 of the award, which reads as under:
In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances which may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the ''gross'' type, he may be merely discharged with or ''without notice or on payment of a month''s pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service Discharged in such cases shall not be deemed to amount to disciplinary action." The workman earlier filed the application u/s 33C(2) of the Industrial Disputes Act, (hereinafter called the Act), and claimed a sum of Rs. 48,500/- as under:
(a)
suspension wages from 5.10.1970 to 31.10.1976
Rs. 36,500/-
(b)
Balance of salary from 1.1.1970 to 4.10.70
Rs. 3,600/-
(c)
Bonus @ 20% as declared for year 1969-70, 1970-71, 1971-72, 1972-73, 1973-74, 1974-75, and 1975-76
Rs. 8,400/-
Total
Rs. 48,500/-
The Presiding Officer, Labour Court, Ludhiana, vide order dated November 28, 1977, copy, Annexure P.7, came to the conclusion,-
As I have already stated, the re-preventative of the management admits that no punishment was inflicted on the Petitioner as he was simply discharged from service. Clause 19(12)(c) also makes it clear that discharge from service shall not be deemed to amount to disciplinary action. I am, therefore, of the view that the Petitioner in this case was entitled to full wages for the period of suspension and his claim for remaining wages is sustainable.
Ultimately, the petition u/s 33C(2) of the Act was allowed and the Petitioner was found entitled to receive Rs. 9,379.98 from the management. After the said order was passed by the Labour Court, the workman approached the Central Government for a reference of the industrial dispute. The Central Government vide order dated 17/20th November. 1978. referred the following dispute to the Central Government Industrial Tribunal, New Delhi, for adjudication:
Whether the action of the management of Allahabad Bank in discharging Shri Pran Nath Chopra, Clerk, Jullundur Branch of the Bank w.e.f. 26.3.73 as a measure of punishment is legal and justified ? If not, to what relief is the workman entitled?
According to the claim of the workman set up before the Central Government Industrial Tribunal, no enquiry was conducted against him and he was not informed about his discharge from service. He also stated that he made an application to the Labour Court, Ludhiana, u/s 33C(2) of the Act, claiming wages for the suspension period and the management in reply to his application submitted on February 18, 1977, that he had been discharged from service with effect from March 26, 1973. Thus, according to the workman, the management took up the position before the Labour Court that the discharge was not punitive and, therefore, the Labour Court allowed full wages up to March 26, 1973. In these circumstances, it was contended before the Central Government Industrial Tribunal by the workman that the management be directed to reinstate him in service with continuity of service with full back wages because his discharge from service was not legal and proper. The claim was contested on behalf of the management of Allahabad Bank inter alia on the ground that the workman Was discharged from service for acts of gross misconduct. He was charge-sheeted, but he did not reply to the charge-sheet. A proper departmental enquiry was held after serving due notice on him. The proceedings of the said enquiry were filed before the tribunal. The Enquiry Officer found the workman guilty of the charges against him. A show cause notice was given to him in terms of paragraph 19-12 of the bi-partite settlement of 1976 in respect of the punishment to be inflicted, but the workman did not reply. Ultimately, he was discharged from Bank-service by order dated March 26, 1973.
According to the Central Government Industrial Tribunal, the question involved in the case was: whether the discharge simplicitor of the workman under para 19.12 of the bi-partite settlement without following the procedure and complying with the requirement of Section 25-F of the Act was valid or not. According to the tribunal, the management did not make the order of discharge by way of punishment. It was an order of simple discharge and that it was on that basis that the Labour Court allowed the full wages to the workman till March 25, 1973. According to the further findings of the tribunal, it was well settled that bi-partite settlement is overridden by the provisions of the Act and since there was non-compliance with the provisions of Section 25-F of the Act, the order of discharge was void ab initio. The tribunal also observed,-
Unfortunately, for the Bank-Management, they did not have Section 25-F of the Industrial Disputes Act, 1947, in mind, when they terminated the services of Shri Pran Nath Chopra not by way of punishment, but by way of discharge simpliciter w.e.f. 26.3.1973, and the action of the Management must be held to be void and cannot be maintained and cannot be held to be legal and justified.
Ultimately, the tribunal, concluded that in place of re-instatement of service, the workman was entitled to compensation. According, a sum of Rs. 50,000/- was allowed by way of back wages and reinstatement; in service.
The learned Counsel for the Petitioner contended that the reference made to the tribunal was: whether the action of the management in discharging the workman P.N. Chopra, Clerk, Jullundur Branch of the Bank with effect from March 26, 1973, as a measure of punishment is legal and justified? If not to what relief is the workman entitled. According to the learned Counsel, the tribunal has not given any finding to the effect as to whether the enquiry held against the workman was vitiated it any manner. According to the learned Counsel, thus, the tribunal has acted without jurisdiction and beyond the scope of the reference. In support of the contention, the learned Counsel relied upon Delhi Cloth and General Mills Co. Ltd. Vs. The Workmen and Others, and Firestone Tyre and Rubber Company of India (P) Ltd. Vs. Workmen Employed, represented by Firestone Tyre Employees'' Union, It was further contended that the workman had already taken the benefit u/s 33C(2) of the Act under paragraph 19.12 of the bi-partite settlement. Therefore, he could not be allowed to accept the same partly. Either the said clause was to be accepted or rejected as a whole. In support of the contention, the learned Counsel relied upon M G. Jadhav v. W.M. Bapat 1933 LIC 1044, and Herbertsons Ltd. v. Workmen AIR 1977 S.C. 322.
On the other hand, the learned Counsel for the workman, Respondent No. 2, submitted since that it was the case of the management that the action taken against the workman was not by way of punishment, the tribunal has rightly decided that the action taken was void and could not be maintained as the Bank did not keep in view the provisions of Section 25-F of the Act while terminating the services of the workman. Mereover, argued the learned Counsel, this question was never raised before the tribunal that the award was beyond the reference and, therefore, it could not be allowed to be re-agitated in this writ petition.
I have heard the learned Counsel for the parties and have also gone through the case law cited at the bar.
It could not be disputed that in view of the authoritative pronouncement of the Supreme Court in Delhi Cloth and General Mill''s case and F. T. & R. Co. of India (P) Ltd. (supra), the tribunal could not travel outside the terms of the reference. The reference in the present case was specific viz., whether the action of the management of Allahabad Bank in discharging Shri Pran Nath Chopra, Clerk, Jullundur Branch of the Bank with effect from March 26, 1973, as measure of punishment is legal and justified ? If not, to what relief the workman is entitled. But, according to the tribunal, the question in this case was whether the discharge simpllciter of the workman under paragraph 19.12 of the bi-partite settlement without following the procedure and complying with the requirements of Section 25-F of the Act, was valid or not The tribunal without adverting to the question referred to it, found that the order of discharge was not by way of punishment in view of paragraph 19.12 of the bi-partite settlement. This approach of the tribunal, in the facts and circumstances of this case, in my view, was wholly unwarranted and beyond the scope of reference. The workman claimed reference that the. order of discharge was passed by way of punishment, which, according to him, was not justified. Thus, the reference made to the tribunal was not answered rather the tribunal proceeded with the assumption that the management did not have Section 25-F of the Act, in mind, when it terminated the services of the Respondent not way of punishment, but by way of discharge simpliciter. Thus, the whole approach of the tribunal in this behalf was wholly wrong, illegal and misconceived as it travelled beyond the scope of the reference.
Consequently, this writ petition succeeds and is allowed. The impugned award is set aside and the case is sent back to the tribunal, Respondent No. 1, to decide the reference made to it afresh in accordance with law. However, there will be no order as to costs.