BIMAL GUSSAIN Vs. CANARA BANK
HIGH COURT OF UTTARAKHAND
Canara Bank and Ors.
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Kalyan Jyoti Sengupta, J. -
(1.) BY this writ petition, the petitioner has challenged two impugned orders dated 7th January, 2003 and 3rd September, 2004 respectively. By the first mentioned order, the disciplinary authority imposed punishment of compulsory retirement, and by the second mentioned order, the appellate authority has dismissed departmental appeal of the petitioner.
(2.) LEARNED counsel for the respondents has raised preliminary objection drawing my attention to the portion of the counter affidavit that petitioner had and still has alternative remedy to approach Central Industrial Tribunal. Whether provision of Industrial Disputes Act applies to the petitioner is not examined by this Court at the moment. Assuming it does, I hold the petitioner can not be non -suited from this proceedings. It is settled position of law, the existence of alternative remedy is not an automatic ouster of writ court jurisdiction. The power of High Court under Article 226 of the Constitution of India is plenary one and this power emanates from the Constitution and this cannot be ousted by any authority or by any simple legislation, to say the least by the Industrial Disputes Act. However, it has now become trite and consistently it has been held by the Apex Court and High Courts that this power is exercised by the High Court with self imposed restraint and restriction aiming at to filter unimportant matters those do not involve any indicated question of law including constitutional one. To clarify above position, if the Writ Court thinks at the threshold to admit the matter to be heard itself without any qualification, and invites affidavits, the plea subsequently taken in affidavit by the adversary should obviously be ignored. Therefore, point raised by the learned counsel for the respondents has to be overruled because of the fact in this case as it reflects from the order of the learned Single Judge. On 30th November, 2004, the learned Single Judge of this Court passed this order: - -
Learned counsel for respondents prays for and is granted four weeks time to file counter affidavit.
Thus, it is clear this Court decided to hear the writ petition without any reservation and even respondents by necessary implication called upon the writ court to render decision on this issue seeking time to file affidavit, and did not take this plea of alternative remedy at that stage at all. It was open for the respondents at the threshold to raise this point. Had this point been raised, the writ court would have decided whether the matter should be decided by itself or it would be relegated to statutory forum. Thus, preliminary objection is hereby overruled. I now proceed to decide the matter on merit.
(3.) THE fact is required to be narrated in this case. The petitioner at the relevant point of time, namely, in the year 2002 was clerk -cum -cashier in Baijrao Branch of the respondents Bank. On 16th January, 2002, he was served with the chargesheet with allegation of misappropriation with regard to deposit in the savings bank account No. 4843 held by one Shri K.G. Verma and misappropriation of Rs. 5000/ - against deposit in current account maintained by M/s. Maheshwari Automobiles. Therefore, there are two sets of charges of misappropriation in connection with the Bank Accounts maintained by the two constituents. Charge was responded denying the same. The respondent Bank, not being satisfied with the explanation, appointed Officer who held inquiry giving petitioner opportunity of being heard, examining witnesses, receiving documents from the Bank and thereafter appreciating evidence, he found that the petitioner was not guilty in connection with charge "A". However, he found the petitioner being guilty in connection with Charge -B. The disciplinary authority, after hearing the petitioner, imposed punishment of compulsory retirement at the age of 40 years. The petitioner approached the appellate authority unsuccessfully, namely, Deputy General Manager. Hence, the writ petition was filed.;
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