- (1.) Appellant Bank has preferred the instant appeal assailing the judgment and order passed by a learned Judge of this court whereby the learned Judge dismissed the writ petition filed by the appellant and allowed the counter-claim filed on behalf of the employee. The relevant facts for deciding the instant appeal are briefly stated hereinafter. The respondent no. 2 herein was employed as clerk in the appellant bank. According to the appellant bank, India Card was issued to the said respondent no. 2 while he was serving the bank as an employee. It has been alleged on behalf of the appellant bank that the said respondent no. 2 misused the facilities of the India Card, which was issued to him by the bank on 24th September, 1996. It has been submitted on behalf of the appellant bank that the spending limit of the said India card issued to the respondent no. 2 was Rs. 20000/- only. It is the case of the appellant bank that the said workman used the aforesaid credit card quite frequently and misused the facilities as a result whereof the liability of the respondent no. 2 against the said credit card went up to Rs. 2,11,760.15 as on 30th September, 1997 apart from the interest. The appellant bank advised the respondent no. 2 by the memo dated 10th January, 1997 and subsequently by another memo dated 7th February, 1997 to make payment of the aforesaid outstanding amount in respect of the credit card. The learned counsel of the appellant bank submitted that the respondent no. 2, inspite of repeated reminders, did not take any step for payment of the aforesaid outstanding dues. In the aforesaid circumstances, Chief Officer (IL) and Disciplinary Authority issued a charge sheet to the said respondent no. 2 and an 3 Enquiry Officer was also appointed by the said Disciplinary Authority to enquire into the charges mentioned in the charge sheet issued to the said respondent no. 2. A regular departmental enquiry was held thereafter in terms of Para 9.12 of the bipartite settlement dated 19th October, 1966 which was applicable to the workman at the relevant time. During the pendency of the enquiry proceeding, the respondent no. 2 submitted a letter to the Enquiry Officer on 14th January, 1998, admitting his liability to the tune of Rs. 2,11,760.15/- for using the aforesaid credit card. In the aforesaid letter, the respondent no. 2 also assured the bank to pay off the liabilities in relation to the aforesaid credit card. In the aforesaid letter the Respondent No.2 also gave a proposal to the Enquiry Officer for adjustment of the entire outstanding dues from his salary, provident fund and if necessary from his gratuity after retirement. The Disciplinary Authority, however, passed the final order imposing the punishment of dismissal from service with immediate effect. The employee concerned thereafter preferred an appeal before the Appellate Authority and the said Appellate Authority affirmed the order of dismissal from service passed earlier by the Disciplinary Authority. The learned counsel of the appellant bank submitted that the card was issued to the respondent workman as staff member of the appellant bank and the said respondent availed all the concessions in this regard as are available to the staff member. The learned counsel of the appellant bank further submitted that 4 the bank is a financial institution dealing with public funds and the employees, therefore, must regulate the financial activities well within the norms of Bank s rules/procedures and any deviation therefrom must be viewed very harshly and deterrently. The learned counsel of the appellant bank submitted that in view of the aforesaid position and keeping in mind the guidelines of the bank, disciplinary proceeding was initiated against the employee concerned for gross misconduct. It has been submitted on behalf of the respondent no. 2 that any misuse of India Card by the card holder employee cannot authorise the Disciplinary Authority of the bank to initiate the disciplinary proceeding against the employee. The learned counsel appearing for the employee specifically submitted that the Rules and Regulations applicable to the card holder for using the same does not authorise the Disciplinary Authority of the said card holder to initiate disciplinary proceedings in case of overdrawal or misuse of the card. The learned counsel of the respondent employee urged before this court that any action against the card holder for overdrawal or misuse of the same should be taken strictly in terms of the Rules and Regulations as applicable for using the said credit card by a card holder. The learned counsel of the employee concerned submitted that the credit card Rules and Regulations do not authorise 5 the Disciplinary Authority to initiate a disciplinary proceeding for misuse and/or improper use of the said India Card. Learned counsel of the appellant bank submitted that by the circular dated 3rd May, 1997 employees were specifically informed that in order to curb the increasing trend in creation of temporary overdrafts in the accounts of staff members, due to indiscriminate use of India Card by them, appellant bank had decided that temporary overdrafts created due to usage of India Card should not exceed Rs. 5,000/- at any point of time and should be cleared within 15 days or the next salary day whichever was earlier. The learned counsel of the bank further submitted that the defaulting staff members are liable for appropriate disciplinary action, including the extreme penalty/punishment provided in the Regulations/Settlements applicable to them. The abovementioned Circular also stipulated that staff members would be required to keep sufficient balance in their account to cover debits for India Card usage as India Card was also a Charge Card and not just a Credit Card. The learned Single Judge has considered the aforesaid circular dated 3rd May, 1997 issued by the appellant bank and observed that no document was produced by the appellant bank wherefrom it could be established that the aforesaid circular was brought to the notice of the workman. Furthermore, the learned Single Judge also observed that 99% of the claim of the bank for use of 6 the card was in respect of the period between September 1996 and February, 1997 i.e. before issuance of the aforesaid circular. The learned Single Judge also considered the credit card scheme and relied on 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 addon members. In the event any card holder fails to make payment within the stipulated time, the same cannot be construed as misconduct in course of employment for which any disciplinary proceeding can be initiated. In the instant case, the respondent employee admittedly exceeded the sanctioned spending limit in respect of the card for which appropriate steps could have been taken against the card holder employee strictly in terms of the Rules and Regulations of the India Card. The Rules and Regulations of the India Card does not authorise an employer to initiate disciplinary proceeding against the card holder for exceeding the sanctioned spending limit and/or on account of non-payment of the bills within the due date. In the instant case, the respondent employee being the card holder never denied his responsibility to make payment of the bills in respect of the card, but submitted a specific proposal for payment of the outstanding bills. The learned counsel of the respondent employee specifically submitted that the terms and conditions as are required to be followed for using the India Card by a card holder do not authorise the appellant bank to initiate any proceeding 7 against a card holder in case of any breach and/or violation of the terms and conditions by the card holder. Scrutinizing the terms and conditions as are applicable to a card holder for using the India Card, we are of the opinion that the authorities of the appellant bank are not entitled to initiate any disciplinary proceeding against India Card holder employee for violating the terms and conditions of the said India Card. For breach of the terms and conditions of the India Card, appropriate steps might be taken against the card holder including cancellation of the said card in compliance with the Rules and Regulations as are applicable to the Card Holders of the India Card, but the employer namely, the authorities of the appellant bank are not empowered to dismiss the card holder employee from service by initiating disciplinary proceedings for misusing the said India Card. Misuse of the India Card by exceeding the sanctioned spending limit or causing delay in making payment of the bills by a card holder employee cannot be regarded as misconduct under the Service Rules of the appellant bank since the employee concerned did not commit any misconduct in course of employment. In the present case no amount is due and payable to the bank by the respondent employee. As a matter of fact, the recovery of payment from a card holder of India Card should be made strictly in terms of the Rules. The declared misconduct for which any disciplinary proceeding can be initiated 8 against an employee of the bank, does not include misuse of India Card by the said employee. In the present case, the appellant bank has already recovered the amount from the workman/respondent no. 2 with penal interest. We have already observed, the card holder can be penalised for misusing the India Card strictly as per the Rules and Regulations mentioned in the card holder agreement. In terms of the aforesaid card holder agreement appellant bank can appoint agent for recovery of any outstanding dues in relation to the card or initiate any other action allowed by law for recovery of amount payable to the said bank but the bank authorities are not entitled to initiate disciplinary proceedings for the purpose of dismissing the card holder. Clause 12.1 of the said card holder agreement is set out hereunder :- The Bank, at its sole discretion, can appoint agents for recovery of any outstanding on the Card or initiate any other action by law for recovery of all monies owing to the Bank. The authorities of the appellant bank had, in our opinion, exceeded their authority and jurisdiction by initiating disciplinary proceedings against the respondent workman for misusing the India Card by exceeding the spending limit and on account of failure of the said workman to make payment of the outstanding bills within time. Another factor, which we also cannot ignore, is that the respondent employee had informed the competent authority of the appellant 9 bank that he was compelled under threat to entertain antisocial elements, who had trapped him, in luxurious hotels and restaurants in order to save his close relations including in particular his wife and had also requested the appellant bank to cancel the said India Card. The learned Single Judge considered the aforesaid conduct of the workman and specifically observed that the workman concerned had not incurred the expenses voluntarily. The authorities of the appellant bank, instead of advising the authority of the India Card to take appropriate steps against the workman concerned in terms of the card holder agreement, initiated disciplinary proceedings which was not permitted under the law. The learned Tribunal as well as the learned Single Judge considered the issues relating to the payment of back wages to the workman concerned. The learned Single Judge, however, upon allowing the so-called counterclaim of the respondent employee directed the appellant bank to pay full back wages to the respondent instead of 50% of the back wages as was directed earlier by the learned Tribunal. Admittedly, the said respondent employee did not file any writ petition before this Court challenging the direction of the learned Tribunal with regard to payment of 50% of back wages and therefore, there was no scope to claim full back wages at the time of hearing of the writ petition of the bank. 10 The respondent employee is not entitled to claim any independent relief in the writ petition of the appellant bank. The respondent employee cannot expect any relief on the application of the appellant bank. There is no scope to file a counterclaim by the respondent employee in relation to the writ petition filed by the appellant bank and as a matter of fact, no counterclaim was also filed on behalf of the employee concerned in connection with the writ petition. The learned Single Judge by the impugned judgment and order under appeal only decided the writ petition filed by the appellant bank. Therefore, while deciding the writ petition filed by the appellant bank, learned Single Judge had no scope to grant any relief to the respondent workman by directing payment of full back wages upon modifying the direction passed by the learned Tribunal when the said direction of the learned Tribunal was not even challenged by the employee concerned by initiating appropriate proceeding. We, therefore, do not approve the directions of the learned Single Judge with regard to payment of full back wages. Accordingly, we set aside the aforesaid direction of the learned Single Judge regarding payment of full back wages. We have been informed that the employee concerned has already attained the age of superannuation and therefore, the said employee cannot be reinstated in service pursuant to the award passed by the learned Tribunal. 11 Since the order of dismissal has been quashed, the employee concerned should be notionally treated in service all through as if no order of punishment was ever issued in respect of the said employee. The employee concerned will therefore, be entitled to receive half of the back wages in terms of the award passed by the learned Tribunal till the date of the award and thereafter, will be entitled to receive full admissible salary and allowances till the date of attaining the age of superannuation. The appellant-bank is directed to make necessary payment in terms of this order to the employee concerned without any further delay but positively within a period of six weeks from date upon adjusting the payment already made to the employee concerned under Section 17B of the Industrial Disputes Act. Needless to mention that the appellant-bank will also grant all retiral benefits including pensionary benefits, if admissible under the law to the employee concerned as if the employee concerned has retired in normal course like any other employee of the said bank. With the aforesaid directions, we modify the impugned judgment and order under appeal passed by the learned Single Judge and dispose of this appeal without awarding any costs. 12 In view of disposal of the appeal, no order need be passed in the connected application being C.A.N. No. 6905 of 2010 and the same is accordingly disposed of along with the appeal. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking. ;