1 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 9820 of 2019 Punjab National Bank Versus Union of India & Anr. For the Petitioner : Mr. Sujit Lal Sircar. For the Respondent No. 2 : Mr. Ranjay De, ld. Sr. Adv. Mr. Basabjit Banerjee, Mr. Adityajit Abel Bose. Judgment reserved on : 28.08.2026 Judgment delivered on : 30.09.2026 Shampa Dutt (Paul), J.: 1. The writ application has been preferred being aggrieved by an Award dated 28th November, 2018 passed by the learned Presiding Officer, CGIT, Kolkata. 2. Vide the impugned order the learned Tribunal held as follows:- “15. Though the workman is said to be an honest employee and there was no complaint against him in past, but his conduct in making payment against rules of the Bank without debiting account cannot be justified only because he was honest employee and have been instrumental in mobilizing fund and 2 business of the Bank, but the punishment awarded against him certainly appears to be harsh disproportionate to the charges leveled against him and where the punishment is disproportionate and harsh, the Tribunal has power to interfere with the punishment order of compulsory retirement and award appropriate relief. In the facts and circumstances of the case, a lesser punishment would have served the purpose. Throwing away a honest and upright employee from employment of the Bank is not only loss to the Bank but also to the family of the employee concerned. While awarding the punishment the disciplinary authority did not take into account the certificate, Exhibit M-03 issued by the Branch Manager regarding honesty of the workman. Thus the charges proved are not that serious which warrant compulsory retirement. 16. In view of above, punishment of compulsory retirement is liable to be set aside and lesser punishment of stoppage of three increments permanently is justifiable. However, it is discretion of the management of the Bank to permit him to work either in cash department or somewhere else.” 3. The petitioner/bank’s case is that Shri Asesh Kumar Mishra, respondent No.2 and Head Cashier of Berhampore Branch of Punjab National Bank on 10th March, 2009 at about 4.00 P.M. had informed the Branch Manager by a letter that he found shortage of cash of Rs.8.30 lacs in his counter but he was unable to explain the reason thereof and was also not in a position to make good the shortage on the day itself. In order to close the operation of the day, Bank was forced to make good the cash shortage by debiting Suspense Account of the Branch with the said amount. 3 4. In view of such suspicious and/or fraudulent act on the part of Shri Mishra, Respondent No.2, he was placed under suspension on the same day as per letter dated 10th March, 2009. The Branch had also filed an FIR dated 12th March, 2009 before the Berhampore Police Station against the respondent No.2. 5. On 16th March, 2009, the Respondent No.2 had himself deposited the entire amount of Rs.8.30 lacs with a request to credit the amount in Suspense Account to make good the loss and withdraw the FIR lodged against him. 6. A Charge Sheet dated 22nd February, 2010 was issued to the respondent No.2 and he had sent reply thereto on 4th March 2010 stating that he had paid the amount of Rs.8.30 lacs to one Haren Mondal, which was not believable in view of what he stated in his letter dated 10th March, 2009. Since his reply was not found to be satisfactory, an enquiry was ordered in which Shri Mishra, Respondent No.2 actively participated. 7. Enquiry Officer submitted his Enquiry Report dated 25th May, 2010 which was sent to the respondent No.2 for his comments thereon by the Disciplinary Authority. On receipt of comments of Respondent No.2 on the Enquiry Report, the Disciplinary Authority sent Show Cause Notice dated 18th September, 2010 proposing punishment of Compulsory Retirement from service with superannuation benefits and personal hearing was fixed for the same on 24th September, 2010. Although the Respondent No.2 did not attend on the said date, he appeared on 14 October, 4 2010 before the Disciplinary Authority with a letter dated 30th September, 2010 stating that the enquiry was conducted as per rules but he prayed for imposition of lesser punishment in the interest of his family. The Disciplinary Authority passed order of Compulsory Retirement with superannuation benefits on 6th October, 2010. 8. The respondent No.2 preferred an appeal against the order of the Disciplinary Authority, inter alia, stating that he had paid the amount of Rs.8.30 lacs to Shri Haran Mondal without checking the balance in the account. At the same time, he had sent another representation dated 30th October, 2010 to the Chairman of the Bank stating that he had paid the amount of Rs.8.30 lacs on the verbal order of the Branch Manager. The Appellate Authority vide his order dated 29th December, 2910 rejected the appeal and confirmed the punishment awarded by the Disciplinary Authority. 9. That respondent No.2 had sent letter dated 27th July, 2011 before the Regional Labour Commissioner (Central), Kolkata (ALC) requesting for initiating a conciliation proceeding. After three conciliation meetings held on 10th August, 2011, 7th September, 2011 and 1 November, 2011, the ALC submitted a Failure Report dated 1/7th December, 2011 of the conciliation meeting. 10. Respondent No.2 had filed application No.CGIT-23 of 2012 under section 2A(2) of Industrial Disputes Act, 1947 before the Central 5 Government Industrial Tribunal at Kolkata (CGIT). After exchange of affidavits, note of Argument of respondent No.2, Ld. Presiding Officer had passed Award dated 28th November, 2018 setting aside the punishment of Compulsory Retirement awarded by the Disciplinary Authority and upheld by the Appellate Authority, with direction for reinstatement of the Respondent No.2 in service with lesser punishment of stoppage of three increments with cumulative effect. However, he was not entitled to any back wages. 11. That the impugned Award dated 28th November, 2018 passed by the Ld. Presiding Officer, CGIT, Kolkata is considered not tenable in the eye of law as well as in the facts and circumstances of the case and accordingly being aggrieved and/or dissatisfied with the said Award the petitioner bank had filed the present writ application before this Court. 12. As per order dated 22nd July, 2019 this Hon'ble High Court directed the petitioner to commence payment as per Section 17B of the Industrial Disputes Act, 1947 from the month of July, 2019. Further, as per Order dated 7th August, 2019 of this Hon'ble High Court, Calcutta, the order passed by the Central Government Industrial Tribunal dated 28th November, 2018 was stayed till the disposal of the writ petition. The Bank was directed to immediately act in terms of the order passed under section 17B of the Industrial Disputes Act, 1947. 6 13. In compliance with the above-mentioned orders of this Hon'ble High Court, the petitioner had started paying salary of Rs.28,979.36 per month (last drawn wages) to the Respondent No.2 with effect from July, 2019 and continued to pay each month, last one being February, 2026. 14. Had the respondent No.2 not been compulsorily retired from the service, as per order dated 6th October, 2010 of the Disciplinary Authority, he was due to retire from the services of the Bank on 31.08.2021. After retirement of an employee from the service, the employer-employee relationship ceased and accordingly the Respondent No.2 is not eligible for any salary from September, 2021. But in view of the order of the High Court under Section 17B of the Industrial Dispute Act, the Petitioner/Bank continued to pay under Section 17B of the I.D. Act to the respondent no.2, beyond September 2021, but the respondent no. 2 neither informed the bank nor this Court that as he had superannuated he was not entitled to any further wages. In March, 2026, this Court made a query as to the date of superannuation of the respondent no. 2, when it appeared that the respondent no.2 had been paid excess wages to the tune of Rs. 15,59,981.48 from September, 2021 to February, 2026, which was received by the respondent no. 2 without informing that he had retired 5 years back (superannuation). 7 15. In view of the order dated 25th March, 2026 of this Court, the Petitioner Bank stopped payment of wages under Section 17B of the I.D. Act to the Respondent No.2 on and from March, 2026. But the excess salary paid to the Respondent No.2 to the tune of Rs.15,59,981.48, as stated above, is recoverable from him. This conduct of the respondent no. 2 is also not fair and honest, even before a Court of law, where he seeks justice. 16. The petitioner/Bank would suffer irreparable loss and injury unless direction is given to the Respondent No.2 to repay the excess salary of Rs. 15,59,981.48, received by him after the date of his retirement. 17. The respondent no. 2/employee’s case before this Court is that during the enquiry proceedings conducted against him, a short fall of Rs.8,30,000/- was accepted by the employee who later, on 16.03.2009 deposited the same in the branch of the petitioner/Bank. Such refund on behalf of the respondent no. 2 has been recorded in the report. 18. The respondent no. 2 challenged the punishment of compulsory retirement. The respondent no. 2 has relied upon certain documents to show that superior officers have stated that he was honest. He has relied upon the following judgments in support of the said contention:- (i) Nand Kumar Verma vs. State of Jharkhand & Ors. reported in (2012) 3 SCC 580 at paragraphs 34 and 38. 8 19. The further case of the respondent no. 2 is that the jurisdiction under Section 11A of the Industrial Disputes Act, 1947 has been properly exercised:- Undoubtedly, Section 11A of the Industrial Disputes Act, 1947 confers jurisdiction to interfere with the punishment imposed by the employer and to minimize/reduce in as much as by imposing an alternative one. The law of the land, though by various judicial pronouncements have imposed checks and balances to be observed by the forums created under the said Act of 1947, the statutory provision has not been held to be unconstitutional by the Hon'ble Apex Court. In fact, in an appropriate case, the Learned Tribunal has got every jurisdiction to exercise the discretion under Section 11A of the said statutory provision. 20. The respondent no. 2 stated that basically, the Learned Tribunal, as would appear from paragraphs 15 and 16 of the Award dated 28.11.2018 (W.P. Page no. 119 and 120), that cogent reasons have been assigned for interfering with the punishment imposed. Therefore, it cannot be said that the Learned Tribunal has shown private benevolence or the interference has been made by dint of misplaced sympathy. 21. The judgment in The Workmen of M/s Firestone Tyre and Rubber Co. of India (P) Ltd Vs. The Management & Ors. reported in (1973) 1 SCC 813 at paragraph 65 has relied upon the judgment. 9 22. Finally, the learned counsel for the respondent has argued that it is explicit from the brief facts stated hereinabove that undisputedly the private respondent never misappropriated any amount nor caused any loss to the Bank. Secondly, neither the Disciplinary Authority nor the Appellate Authority of the Bank ever considered the letter dated 29.04.2009. Thirdly, the Learned Tribunal has assigned reasons for interfering with the punishment imposed by the Bank and lastly, nothing could be projected by the Bank that the Learned Tribunal has acted by the jurisdiction as conferred under Section 11A of the said Statutory Provision. 23. Moreover he never had any gainful employment or gainful earnings after his severance from the Bank since 06.10.2010. 24. Under these circumstances, the private respondent herein humbly prays for an order for the dismissal of the instant writ application as well as for a direction up on the Petitioner Bank for disbursement of all his retiral dues including pension on a consideration of his wages to which he was entitled in August 2019, being the month of his retirement. 25. From the materials on record including the impugned award it appears that the charge against the respondent no. 2 was, shortfall of cash of Rs. 8,30,000/- in the bank, which was reimbursed by the respondent no. 2 (admitted). 10 26. The tribunal passed the impugned award solely on the basis of a certificate of a superior officer stating the respondent no. 2 to be an honest officer. 27. As to why such a certificate was required is a big question. Such a certificate can never prevail over a valid disciplinary proceedings in such a major offence/charge. 28. The penalty of ‘compulsory retirement’ was thus appropriate even though the employee’s conduct was proved to be a major offence, which prima facie involved financial misappropriation. 29. WPA 9820 of 2019 is thus allowed. 30. The impugned award dated 28th November, 2018 passed by the learned Presiding Officer, CGIT, Kolkata, being perverse and not in accordance with law is set aside. 31. The petitioner is at liberty to recover the excess amount of Rs. 15,59,981.48/-, received by the respondent/employee by due process of law, including adjustment with his arrears of dues, if any. 32. All connected application, if any, stands disposed of. 33. Interim order, if any, stands vacated. 34. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities. (Shampa Dutt (Paul), J.)