D.K.Seth - (1.) THE disciplinary proceeding was initiated against the respondent No. 1 workman on the basis of a charge-sheet served on the workman on 3.2.1976. THE workman was put under suspension by order dated 6.11.1975 which is Annexure 1 to the writ petition. Pursuant to an order dated 27th October, 1976 the workman was discharged from bank service by an order dated 12.11.1976 in terms of Paragraph 19.6 of the Bipartite Settlement between Indian Bank Association and All India Bank Employees Association dated 19.10.1966. THE said order of discharge was reduced on an appeal pursuant to an order dated 24.10.1977 (Annexure 2 to the writ petition). By an order dated 13.11.1978, on the representation of the workman for payment of benefits during the period of suspension was disposed of by treating the period between 27.10.1976 to 16.11.1977 as on leave. THEreupon, the workman initiated a proceeding being LCA No. 409 of 1985 before the Central Government Industrial Tribunal-Cum-Labour Court, Kanpur, under Section 33C (2) of the Industrial Disputes Act. THE said proceeding was disposed of by allowing the workman's claim by an order dated 5.12.1985. It is this order against which the present writ petition has been moved.
(2.) SRI Yashwant Verma, learned counsel for the petitioner contends that in exercise of Section 33C (2), the Labour Court is empowered to compute the money payable under an existing right. According to him, in computing such benefits, the labour court under Section 33C (2) cannot embark upon determination of any right. Neither it can adjudicate any disputed question, though, according to him it can adjudicate disputed ancillary to computation but still then it cannot determine the rights. According to Mr. Verma, in the present case, the labour court has undertaken exercise to determine the rights since the benefits given does not flow from existing right. In support of his contention, he relies on the decision in the case of M/s. Hindi Sahitya Sammelan v. Presiding Officer, Labour Court, 1996 (1) UPLBEC 42. Mr. Raj Kumar Jain, learned counsel for the respondent No. 1 on the other hand, contends that in the facts and circumstances of the case, it is a simple computation and not a determination of any right. The benefit computed flows from existing right. According to him, the right of the workman is dependent on the order of termination since merged in the order of the appellate authority. The labour court has computed the benefit on the basis of the Bipartite Settlement referred to above where from the rights flow. The matter of termination merged in the order of the appellate authority by means of reduction is governed by the provisions contained in the Bipartite Settlement. The labour court has, infact, computed the amount on the basis of the right flowing from him. According to him, it cannot be disputed that the right flowing from Bipartite Settlement is an existing right. Mr. Jain relied on the decision in the case of the Gopinath Kund v. Bank of India, 1980 Lab IC 538 and on an unreported judgment dated 9.2.77 delivered by Hon'ble Mr. Justice K. N. Seth as His Lordship then was, in Second Appeal No. 291 of 1973, (State Bank of India, Gorakhpur v. R. N. Mishra and another). The order of discharge dated 12.11.1976 in original has been produced by Mr. R. K. Jain along with its xerox copy which is taken on record. Copy of final memo dated 27.10.76 is also produced by Mr. Jain which is also taken on record. Mr. Verma has not disputed the genuineness of the said document. The contents of the said two orders are reproduced below : JUDGEMENT_1325_AWC3_1996Image1.jpg -Mr. S. P. Shukla, Special Assistant (under suspension of Kidwai Nagar, Kanpur, appeared before me today, i.e., 27.10.76 in the morning in my office in Central Bank of India, Station Road, Moradabad in compliance with the last Para of my findings dated 30.9.76 in his departmental enquiry held at Kidwai Nagar Branch, Kanpur. Mr. Shukla was required to be personally heard and/or his representation in writing must reach me by 22nd September, 1976 he could not do so in view of late delivery of my findings through Kidwai Nagar Office, Kanpur. As he sought extension or time limit fixed, it was allowed to him but Mr. Shukla further requested for the extension of time on three occasions thus the reasonable opportunity was provided to him. Sri Shukla in his personal hearing prayed for reducing the punishment to the minimum and urged that the punishment should be such as may not deprive him of his service. Considering his violent attitude and action deliberately indulged by him, I am of the opinion that his continuance in service will not be in the interest of bank. However, since Mr. Shukla, being an aged man, has put in long service in the Bank and dismissal would put him much loss, so I have reconsidered his apologetic attitude and have taken a lenient view on humanitarian grounds in reducing the proposed punishment of dismissal without notice as defined in Para 19.6 (a) of the Bipartite Settlement to 'have his misconduct condoned and be merely discharged". From the date of final order as defined in para 1.6 (a) of the Bipartite settlement. JUDGEMENT_1325_AWC3_1996Image2.jpg JUDGEMENT_1325_AWC3_1996Image3.jpg
(3.) A plain reading of the said order indicates that the termination was met in terms of Article 19 (a) of the Bipartite Settlement. The order of termination has not satisfied as to how the period of suspension would be treated as is ordinarily done in such cases; Therefore, the said order can be construed only with reference to the Bipartite Settlement. The punishing authority has left the issue to be governed by the Bipartite Settlement without exercising any discretion with regard to the determination of the benefit or disadvantage that would be available to the workman for the period from the date of suspension till the date of discharge. The order passed by the appellate authority which is Annexure 2 is reproduced below : "In terms of the order of the undersigned dated 28.5.77, the appeal of Shri S. P. Shukla against the order of discharge passed by the Enquiry Officer was disallowed and accordingly the order of discharge became effective. Shri Shukla requested for a personal hearing and though in terms of the provisions of the Bipartite Settlement, no hearing is required to be given, the same was allowed on 15.10.1977 at Bombay on sympathetic grounds. After hearing Shri Shukla and his representative on 15.10.1977, the conclusion that can be arrived at is that the member has suffered great hardship during the period of his suspension, and is deeply repentant for all that he had done. In view of his repentance and further in view of his agreeing to his demotion and to work as a clerk, or alternatively to reduction in his present emoluments, I feel that the ends of justice would be met if his present basic salary is reduced by three stages to Rs. 450 per month from this date and he be paid only such allowances as may be payable on the reduced basic pay. He may, however, be allowed to receive his usual grade increments each year from the date of this order, i.e., from October. It is, therefore, ordered accordingly as set out above." The said orders also show that nothing was indicated as to how the said period, between the order of suspension till the appellate order was passed, would be governed. The order of reduction of pay by three stages to Rs. 450 per month was made effective from the date of the order, i.e., 24th October, 1977. Therefore, the period prior to 24th October, 1977 has not been dealt with. The said order, therefore, has accepted the same situation as emanated from the order dated 12th November, 1976. Therefore, the authority appears to have left the situation to be governed by the provisions contained in the Bipartite Settlement.;