Bank of India vs Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court and Others

R.L. Anand, J.—The Bank of India (hereinafter called ''the Bank'') has filed the present Letters Patent Appeal under Clause X of the Letters Patent, against the judgment dated 11th March, 1991 passed in C.W.P. No. 3148 of 1987 vide which the learned Single Judge upheld the award of the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh (hereinafter called ''the Tribunal'') dated 9th April, 1987 and dismissed the petition of the Bank under Article 226 of the Constitution of India through which challenge was made to the said award.

A few facts leading to the present L.P.A. would be useful to be incorporated in order to appreciate the controversy between the parties. Shri B.K.S. Sareen (respondent No. 2) was the Officer of the Bank and his services were terminated vide order dated 26.11.1983 after holding the inquiry by the Inquiry Officer under the orders of the punishing authority for the charges enlisted in the said order (Annexure P4). Shri Sareen raised an Industrial dispute which was referred by the appropriate Government to respondent No. 1 for adjudication and the award dated 9th April, 1987 was passed by the competent authority and that workman was entitled to reninstatement to his post with full backwages and the reference was answered accordingly. The award of the Tribunal is Annexure P16 on this file. Aggrieved by the award, the Bank gave challenge to the award by way of writ petition under Article 226 of the Constitution of India and vide the impugned judgment dated 11th March, 1991, the said award passed by respondent No. 1 was upheld. Still not satisfied with the judgment of the learned Single Judge, challenge has been made in the present L.P.A. mainly on the ground that both the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, as well as the learned Single Judge fell in error by holding that termination order of respondent No. 2 Shri B.K. Sareen was not passed by a competent authority and in the present case the competent authority was General Manager and not the Zonal Manager-in-Charge of the concerned Zone. An attempt was also made on behalf of the Bank to prove on the record that respondent No. 2 was not a workman as defined u/s 2(s) of the Industrial Dispute Act, 1947 (for short ''the 1947 ''Act'') as his duties were managerial in nature and he was drawing more than Rs. 1600/- per mensem. This stand of the appellant has been refuted by contesting respondent No. 2 and his main plea was that the impugned order of the disciplinary authority has been passed under Rule 20 of the Bank of India (Officers'') Service Regulations, 1979 (for short ''the 1979 Regulations'') and that the punishing authority in his case ought to be the General Manager and not the Zonal Manager and since the order in his case was passed by the Zonal Manager, and, therefore, the very basis of the impugned order was bad in the eyes of law. The learned Single Judge after hearing the submissions made by the learned counsel for the parties gave the following finding:-

" With respect, I do not find merit in either of the two submissions of the learned counsel nor any legal infirmity in the well-considered award of the learned Tribunal. It is an admitted fact that according to the provisions of Bank of India Officer Employees'' (Dispipline and Appeal) Regulations, 1976, which are statutory in nature, having been framed u/s 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the competent authority to impose the punishment on an officer employee of the status and category of the respondent-workman was the General Manager and not the Zonal Manager, who is an officer subordinate to the General Manager. No amendment whatsoever has been made in the said Regulations and any order passed in contravention of the same shall obviously be null and void on the face of it. The mere fact, that in 1979, that is about three years after the promotion of the Petitoiner, a set of service regulations, namely, Bank of India (Officers'') Service Regulations, 1979, had been framed by the Bank for a different purpose, that is, for grant of salary and other emoluments, promotion, determination of seniority, fixing the age of retirement, etc. and that too without amending or supplementing the Discipline and Appeal Regulations, referred to above, governing the conditions, of service of the respondent-workman, could not rob the workman of the statutory protection available to him under the Discipline and Appeal Regulations."

and held that the impugned order of the punishing authority has been passed under the 1979 Regulations.

We have heard Shri H.L. Sibal, Senior Advocate, appearing for the appellant, and Shri P.R. Mutneja, Advocate, appearing on behalf of respondent No. 2, and with their assistance have gone through the record of the case.

The employees, being officers of the Bank of India, are governed in the matter of their conduct and lapses by different rules known as Bank of India Officer Employees (Conduct) Regulations, 1976, Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976, as amended from time to time. In order to appreciate that controversy raised between the parties before1 us it will be necessary for us to make a brief mention as to what were the charges framed by the disciplinary authority against respondent No. 2. He. was charge-sheeted on three counts, which are mentioned as under:-

i) Submitting of false claim dated 17.6.1981 for Rs. 2660.75 to the Manager, Patna Branch, towards reimbursement of expenses purported to have been incurred by him for transporting his personal belongings from Chandigarh to Patna, and claiming reimbursement of Rs. 2.120/- on 20.6.1981, besides submitting false transporting receipts for Rs. 1122/- frequently obtained from M/s. Delhi Simla Goods Carriers (Regd.), Chandigarh. According to the Bank, in fact respondent No. 2 did not transport any personal belonging through the said transport agency.

ii) The second allegation against respondent No. 2 was that he made false complaints against the Banks'' Security Officer Shri T.S. Sekhon, alleging that he demanded from respondent No. 2 a bribe of Rs. 500/- for submitting investigating report in his favour and thus attempting to malign the character of the official, who was investigating the misconducts alleged to have been committed by respondent No. 2.

iii) The third charge against respondent No. 2 was that he dishonestly submitted claims to the Patna Branch for reimbursement of medical expenses reimbursement of medical expenses purported to have been incurred by him for amounts totalling Rs. 7,005.90 and claiming reimbursement of this amount during the period 29.4.1980 to 30.9.1980 by submitting bills from one Dr. S.R. Batra of Chandigarh.

In the opinion of the disciplinary authority, respondent No. 2 committed serious lapses falling within the purview of major penalties. Regular inquiry was conducted against respondent No. 2 and finally the order dated 26.11.1983 was passed by holding the workman as guilty for the offences under clause 4(g) and clause 4(e) of the Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976, as amended from time to time. Again it will be useful for us to incorporate in this judgment the operative portion of the order dated 26.11.1983, which runs as follows:-

" Please note that aforesaid punishment (s) are awarded to you as major penalty under Regulations 4(g), 4(e) and 4(g) of the Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976. However, the aforesaid punishment (s) will run concurrently. Accordingly, you are hereby removed from Bank''s service with immediate effect on payment of three months'' salary and allowances in lieu of the notice period of three months as required under Regulation 20(1) of the Bank of India (Officers) Services Regulations, 1979....."

Shri H.L. Sibal submitted with vehemence before us that the order dated 26.11.1983 passed by the competent authority, which was the Zonal Manager-in-Charge of the Zone concerned and it was not required to be passed by the Senior Manager, as held by respondent No. 1 and by the learned Single Judge. He submitted that Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 has been amended with effect from 1.7.1982 by the Board of Directors at their meeting dated 17.5.1982 after consultation with the Reserve Bank of India and with the previous sanction of the Central Government. This aspect has not been rightly appreciated by the learned Single Judge and for that reason there has been a miscarriage of justice when the learned Single Judge fell in error by giving quite different reasons that the impugned, order ought to have been passed by the Senior Manager instead of the Zonal Manager.

On the contrary, it was submitted by Shri P.K. Mutneja, learned counsel appearing on behalf of respondent No. 2, that in fact the impugned order has been passed under Regulation 20(1) of the 1979 Regulations and only the General Manager was competent to pass such order and he has also relied upon with same order (Annexure P4).

In the light of the above submissions, it has become mandatory for us to examine the charges and the nature of the punishment awarded to respondent No. 2. The summary of allegations we have already reproduced above. A perusal of Annexure P4 would indicate that respondent No. 2 was charge-sheeted under Regulation 4(g) and (e) of the Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 and the punishment was also awarded under the said regulations, when respondent No. 2 was removed from the service of the Bank on payment of three months salary and allowances in lieu of the notice period of three months as required under Regulation 20(1) of the 1979 Regulations. In our opinion, it was not even necessary for the Bank to pay three months'' salary by adhering to Regulation 20(1) of the 1979 Regulations, still the concession was given to respondent No. 2 as his services were to be terminated in consequence of the punishment and in order to avoid any ambiguity for the future, the Bank became doubly sure so that any lacuna in the order dated 26.11.1983 may not remain for criticism at the hands of respondent No. 2. An attempt was made by Shri Mutneja, learned counsel appearing for respondent No. 2, in order to convince us that the order dated 26.11.1983 has been passed by the Zonal Manager in a haphazard manner without applying his mind. There was a complete non-application of mind on behalf of the Zonal Manager. Had he been competent to pass the impugned order, then why the Bank adopted the provisions of Regulation 20(1) of the 1979 Regulations. We have already answered the reasons above, still an additional reason could be given that since respondent No. 2 was removed from service without disqualification for the future, therefore the Bank thought it proper to give respect to Regulation 20(1) of the 1979 Regulations by giving the amount equivalent to the salary of three months to respondent No. 2. It appears to us that the amendment to Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976, which came into force with effect from 1.7.1982 has not been either brought to the notice of the learned Single Judge or this amendment has not . been rightly appreciated, leading to miscarriage of justice to the Bank. In the light of the discussion referred to above, we are inclined to set aside the reasons of the learned Single Judge, when he held that the punishing authority of respondent No. 2 was the General Manager and not the Zonal Manager, who as an officer sub- ordinate to the General Manager.

We have also considered the main argument of Mr. Sibal when he submitted that respondent No. 2 was not a workman as defined in the proviso to Section 2(s) of the 1947 Act. He was holding a Class-I past in the Bank. His duty was managerial in nature. We are not in agreement with the argument raised by Mr. Sibal. The onus was on the Bank to establish that respondent No. 2 was performing the managerial duties. Mere nomenclature of a post is not enough for the purpose of holding whether a particular person falls within the definition of ''workman'' or not. The crux is what type of duties a particular individual performs during the course of his employment under his employer. It was held in S.K. Maini Vs. M/s. Carona Sahu Company Limited and others, , as follows:-

" It appears to us that, whether or not an employee is a workman u/s 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and material on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman u/s 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complicity of industrial or commercial organisation quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, . In All India Reserve Bank Employees Association Vs. Reserve Bank of India, , it has been held by this Court that the word ''supervise'' and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the concerned employee and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a faction of time also does some manual or clerical work, the employee should be lucid to be doing supervisory-works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that. some supervisory or other work is also done by the employee incidentally or only a small traction of working time is devoted to some supervisory works, the employee will come within the purview of ''workman'' as defined in Section 2(s) of the Industrial Disputes Act."

If the present case is examined in the ratio quoted above, there is no pale of contradiction in our mind that respondent No. 2 falls within the definition of ''workman''.

This leads us to determine whether we are to remand this case to the Tribunal in order to determine whether the management conducted proper inquiry against the workman by adhering to the principles of natural justice and according to the Banking Rules as applicable to the workman or not. The Presiding Officer of the Tribunal in the concluding portion of the award dated 9.4.1987 made the observations that the validity of the inquiry though has been challenged by the workman before him during the course of arguments, yet in view of his findings to the effect that the order of termination was not passed by a competent authority, he was not going into the above question if the inquiry was bad or otherwise. We have already stated above that in the present case the order of punishment has been passed by the punishing authority and the order of the learned Single Judge upholding the award that the order of termination has not been passed by a, competent authority, cannot be sustained in the eyes of law. Therefore, it has become obligatory upon us to remit the award and the proceedings conducted by the Labour Court on a limited question whether the inquiry officer had conducted the inquiry in a valid manner or not and whether it stands vitiated on any ground, whatsoever, as alleged by the workman in his statement of claim. To determine and adjudicate this limited question, we direct the Presiding Officer, Central Chandigarh, to give his finding on the above question and the Presiding Officer would be entitled to give his finding afresh on this score only.

Consequently, this appeal succeeds and the judgment dated 11th March, 1991 passed by the learned Single Judge in C.W.P. No. 3148 of 1987 is set aside and the award of the Tribunal is also set aside for the limited purpose. We direct the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, to make a fresh inquiry regarding the validity of the inquiry conducted by the Inquiry Officer against the workman and give this finding thereupon.

The parties are directed to appear before the Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, on 19.2.96. C.M.No. 1529/CI1 of 1992 stands disposed of.