Delinquent be given opportunity of hearing.

1. Pavithran, the petitioner herein, joined the services of the Central Bank of India, as a clerk on 16th July, 1975, at its Cannanoor branch. On 28th February, 1978, he was promoted as an Officer and posted as sub-Accountant. While so, the management of the Bank served a memorandum, dated 27th March, 1980 informing the petitioner that it was proposed to hold a departmental enquiry under Regulation 6 of the Central Bank of India Officer Employees (Discipline and Appeal) Regulation, 1976, for short, Officers Discipline Regulations. The articles of charge related to certain acts of misconduct on the part of the petitioner while he was working as a clerk. The petitioner submitted his explanation. Among others he took the objection that the enquiry could not be held under the Officers Discipline Regulation, since the acts of misconduct related to the period when he was working as a clerk. During the enquiry that was held on 12th March, 1981, the petitioner raised this ground as a preliminary objection which was negatived by the Enquiry Officer. The petitioner has therefore filed the writ petition for the issue of a writ of mandamus for bearing the respondents from proceeding with the enquiry in accordance with the Central Bank of India Officer Employees (Discipline and Appeal) Regulation, 1976.

2. There is no dispute that the article of charge against the petitioner relates to acts of misconduct committed by him while he was acting as a clerk. The short submission of Mr. Somayajee on behalf of the petitioner was that the enquiry should not be proceeded with under the provision of Officers Discipline and Regulations. The act of misconduct for which a charge sheet has been framed against the petitioner related to the period when the latter was employed as a clerk. A clerk comes under the category of the award staff. The award staff are governed by what is called the bipartite settlement between Indian Bank's Association and All India Bank Employees' Association. Chapter 19 of the said bipartite settlement deals with disciplinary action and procedure therefor. Paragraphs 19, 12 of the said chapter deals with the procedure to be followed when it is decided to take disciplinary action against an employee. The Management of the Bank is bound to follow this procedure and not the Officers Discipline Regulation which clearly states that it applies only to an officer employee as defined under the Regulation.

3. On the other hand, Mr. Vijayakumar for the Central Bank of India, contended that at the time the enquiry proceedings commenced against the petitioner, he was an Officer and that he could only be proceeded against under the Officers Discipline Regulation, even though the enquiry proceedings relate to the misconduct committed by him while serving as a clerk. In other words, Mr. Vijayakumar contended that for the purpose of the enquiry, the petitioner could not be deemed to be a clerk by a legal fiction and that the procedure contemplated under the bipartite settlement for disciplinary proceedings could not be followed in the petitioner's case.

4. Chapter 19 of the bipartite settlement, as already stated, deals with disciplinary action and procedure therefor. Paragraph 19.5 defines gross misconduct. It contains as many as 12 items of misconduct. Paragraph 19.6 states that an employee found guilty of gross misconduct may (a) be dismissed without notice; or (b) be warned or censured, or have an adverse remark entered against him; or (c) be fined, or (d) have his increment stopper; or (e) have his mis-conducted condoned and be merely discharged. Paragraph 19.7 defines as minor misconduct and contains as may as 12 items. Paragraph 19.8 states that an employee found guilty of minor misconduct may (a) be warned or censured; or (b) have an adverse remark entered against him; or (c) have his increment stopped for a period not longer than six months. Paragraph 19.9 states that a workman found guilty of misconduct, whether gross or minor, shall