Act And Having Its Office At Bank vs Shri M. N. Jivnani
2013 Latest Caselaw 235 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                            
                       WRIT PETITION NO. 86 OF 2009




                                                    
          State Bank of India                   ]
          A Banking Company under the           ]
          Banking Companies Regulation          ]




                                                   
          Act and having its office at Bank     ]
          Bhavan, Madam Cama Road,              ]
          Mumbai 400 021                        ]    ..Petitioner

                vs.




                                         
          1.     Shri M. N. Jivnani
                            ig                  ]
          residing at Bk. No. 1506,             ]
          Room No. 6, Sector No. 30-A           ]
          Ulhasnagar 4 (Maharashtra State)      ]
                          
          2.    State Bank of India Staff Union]
          A Trade Union registered under the ]
          Trade Unions Act, and having its      ]
          Registered Office at C/o. U. P. Naik, ]
        


          68/86, Harkoovar Bhai Building        ]
          Bakhale Path, Thakrdwar Road,         ]
     



          Mumbai 400 002                        ]    ..Respondents


          Mr. P. Gopalkrishnan i/b. Bhave & Co. for Petitioner.





          Ms Meena H. Doshi for Respondents.

                             CORAM :      M. S. SONAK, J.

Date of Reserving the Judgment: 22.11.2013

Date of Pronouncing the Judgment: 29.11.2013

JUDGMENT :-

1] Rule was issued in this petition on 16.02.2009 and after

record of prima facie findings the award impugned in this petition

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i.e. award dated 31.08.2007 passed by the Central Government

Industrial Tribunal / Labour Court granting Respondent No. 1

reinstatement with continuity of service to claim retirement benefits,

was stayed. By the same order, this court had granted liberty to the

Respondent no. 1 to make an application under Section 17B of the

Industrial Disputes Act, 1947 ('said Act'). However, no such

application has been made by the Respondent No.1 during the

pendency of the petition.

2] The facts necessary for the purposes of evaluating the

challenges to the impugned award lie in a narrow compass.

3] There is no dispute that the Respondent no. 1 was serving

as a cashier cum clerk with the Petitioner bank from 05.08.1982

upto 05.04.1994. Between the period 23.04.1993 and 07.05.1993,

the Respondent no. 1 availed leave and left for Japan without

furnish of any undertaking that he shall not accept any employment

in the foreign country and resume duties upon conclusion of the

sanctioned leave period. Upon expiry of leave period however, the

Respondent no. 1 applied for and was sanctioned sick leave for

the period between 10.05.1993 and 19.05.1993. Respondent no.

1, upon conclusion of this period once again applied for and was

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sanctioned earned leave for the period between 20.05.1993 and

18.06.1993. Upon conclusion of this period, Respondent no. 1 for a

considerable period neither reported for duty nor bothered to apply

for any leave. On 20.08.1993 however, the Petitioner received

application dated 20.06.1993 requesting for extension of leave. The

application was accompanied by a purported medical certificate in

Japanese language, which according to the Petitioner was not

decipherable. By telegram dated 08.10.1993, the Petitioner called

upon Respondent no. 1 to resume duties immediately. In

response, the Respondent no. 1 once again applied for extension of

sick leave by application dated 12.10.1993, again accompanied by

a medical certificate in Japanese language. By letter dated

30.10.1993, the Petitioner made it clear that the certificate in

Japanese language was not decipherable and the Respondent no.

1 ought to have reported for duties since his previous applications

for extension of leave had been declined. Despite all this, the

Respondent no. 1 did not report for duties but addressed a letter

dated 13.12.1993, which was received by the Petitioner only on

09.03.1994, once again seeking extension of leave. In the

meantime, the Petitioner by Registered A.D. addressed notice dated

02.02.1994 to the Respondent no. 1 at his Ulhasnagar address and

the Japan address directing him to report for duties immediately and

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explain the absence without leave. The letters were however

returned 'undelivered' by the postal authorities.

4] Faced with such a situation, the Petitioner addressed notice

dated 05.03.1994 requiring the Respondent no. 1 to report for duty

within 30 days from the date of notice, stating therein very clearly

that in case the Respondent no. 1 fails to do so, he shall be deemed

to have voluntarily retired from the services of the bank and shall

also be liable to pay to the bank 14 days / one month's pay and

allowances in lieu of the notice.

5] The aforesaid notice dated 05.03.1994 was addressed to the

Ulhasnagar as well as the Japan address. The notice addressed to

Ulhasnagar was returned 'undelivered' by the postal authorities.

However, the Respondent no. 1 in his deposition before the

Industrial Tribunal has admitted the receipt of notice dated

05.03.1994 at Japan. In the circumstances, there can be no serious

dispute that the notice dated 05.03.1994 was indeed received by

the Respondent no. 1 at Japan.

6] As the Respondent no. 1 failed either to report for duty or

even offer any legitimate explanation for such failure, the Petitioner

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addressed letter / notice dated 24.05.1994 to the effect that the

Respondent no. 1 is deemed to have voluntarily retired from the

service of the Petitioner bank with effect from 05.04.1994 i.e. at the

expiry of 30 days of the notice dated 05.03.1994. There is no

dispute that the Respondent no. 1, as per his own deposition

before the Tribunal has received the letter / notice dated 24.05.1994

at Japan.

7]

There was no reaction / response from the Respondent no. 1

between the period 25.04.1994 and 09.05.1997 i.e. a period of over

three years. On 09.05.1997 however, Respondent no. 1 preferred

an appeal to the appellate authority questioning the letter / notice

dated 24.05.1994. The service conditions applicable to the

Respondent no. 1 provide for appeal being lodged within 45 days of

the action impugned. In this case however the Respondent no. 1

has preferred the appeal after almost three years from the date of

action impugned. The appeal was rejected by the appellate

authority.

8] The Respondent no. 1, thereupon raised an industrial dispute

demanding reinstatement with continuity of back wages. The

dispute was admitted in conciliation, however the conciliation

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proceedings failed. The appropriate government then made a

reference to the Central Government Industrial Dispute / Labour

Court (hereafter referred to as 'CGIT') being Reference No. CGIT-

2/9 of 2001.

9] The Respondent no. 1 filed his claim statement before the

CGIT and the Petitioner filed its response. Documents were

produced by both parties. Respondent no. 1 examined himself and

Mr.

Trevor Theodore Fernandes, Branch Manager, came to be

examined on behalf of the Petitioner bank. The CGIT has made an

award dated 31.08.2007 (hereafter referred to as "impugned

award'). The operative portion of which reads as follows:-

                "(a)     Reference is partly allowed;
     



                (b)      1st Party to reinstate 2nd Party Shri M. N. Jivanani

on his post from where he was asked to voluntarily retire, with continuity of service to claim retirement

benefits;

(c) Prayer of 2nd Party to give back wages is rejected;

                (d)      there is no order as to its costs;"





          10]   Mr.    Gopalkrishnan, the learned counsel appearing for the

Petitioner has attacked the impugned award on the ground that the

same is riddled with errors apparent on the face of record, there is

failure to take into consideration the Petitioner's case based upon

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binding bipartite settlement, failure to abide by rulings of the

Supreme Court of India, perversity in findings and non application of

mind. The learned counsel also took me through the deposition of

Respondent no. 1 and urged that the case set out by the

Respondent no. 1 was inherently improbable and deserved no

acceptance. The learned counsel, in particular, drew my attention to

clause 15 of the bipartite settlement which governs the service

conditions of the Petitioner's employees and submitted that the

Petitioner's action in the present case was entirely consistent with

said clause 15 of the settlement. The learned counsel also placed

reliance upon the judgment of the Apex Court in the case of

Syndicate Bank vs. General Secretary, Syndicate Bank staff

Association & Anr.1 as also the following rulings in support of the

Petitioner's case :

(i) Mahabali vs. Central Administrative Tribunal & Ors.2

(ii) C. Jacob vs. Director of Geology & Mining & Anr.3

(iii) Ramaswamy Murugesh vs. S. G. Bhonsale, the then Presiding Officer, 5th Labour Court & Anr.4

(iv) State of H.P. & Ors. vs. Presiding Judge & Anr.5

(v) Home Gowda Educational Trust & Anr. vs. State of Karnataka & Ors.6

1 2000-I-LLJ 2 2005(107) FLR 1211 3 AIR 2009 Supreme Court 264 4 2005 III CLR120 5 2006 II CLR 1019 6 (2006) 1 Supreme Court Cases 430

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11] Ms. Meena Doshi, the learned counsel appearing for the

Respondents, equally tenaciously defended the impugned award

by submitting as follows:

(A) That the impugned award is made after consideration of all

relevant facts and circumstances. There is no perversity involved in

the findings and as such the award does not deserve to be

interfered with by the writ court;

(B) This is not a case where the Respondent no. 1 failed to

respond to the notices of the Petitioner and the material on record

clearly establishes that the Respondent no. 1 did respond by

applying for extension of leave from time to time. Such leave could

not have been rejected on the only ground that the medical

certificate submitted by the Respondent no. 1 was in Japanese

language. The Petitioner has branches in Japan therefore they

could have very well obtained a translation or verified the

authenticity. This having not been done, the CGIT was fully

justified in upsetting the Petitioner's action of terminating the

services of the Respondent no.1 without either holding any enquiry

or even otherwise complying with principles of natural justice and

fair play.

(C) That without prejudice, the failure of the Respondent no. 1 to

resume duties upon expiry of sanctioned leave could at the highest

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have been treated as 'unauthorised absence' which is prescribed as

a misconduct. In such circumstances, the Petitioner was obliged to

hold a departmental enquiry in the course of which the Respondent

no. 1 would have got opportunity to produce evidence to establish

that his absence was on account of his sickness in Japan. By not

holding any departmental enquiry and denying the Respondent no.

1 opportunity to show cause, the Petitioner bank has breached not

only the bipartite settlement, but further has breached the principles

of natural justice and fair play, which are absolutely non negotiable.

(D) Ultimately, it was submitted that clause 15 of the bipartite

settlement upon which the Petitioner has placed reliance was not at

all applicable to the fact situation of the present case. In any case,

it was submitted that there is no compliance with clause 15 and

therefore the action of the Petitioner was rightly upset by the CGIT.

12] Ms. Meena Doshi, in support of her submissions placed

reliance upon the following rulings :

(i) Kamal Kishore Lakshman vs. Management of M/s. Pan

American World Airways Inc. & Ors.7

(ii) Pramod Kumar Gupta vs. Central Government Industrial

Tribunal-cum-Labour Court, Kanpur Nagar & Ors.8

7 (1987) 1 Supreme Court Cases 146 8 2005(4) L.L.N. 436

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(iii) Regional Manager, SBI vs. Rakesh Kumar Tewari9

13] With the able assistance of both the learned counsel I have

perused the material on record, the impugned award and the rulings

presented for consideration. In my judgment, the impugned award

is unsustainable and deserves to be set aside.

14] The impugned award is almost entirely based upon the

premise that the Petitioner bank by failing to hold a departmental

enquiry has breached principles of natural justice and fair play. This

appears to be the main sty of the impugned award. In addition, the

reasoning adopted by the CGIT is as follows:-

(I) That except for absenteeism in the present instance, there

are no other 'grave charges' levelled against the Respondent no. 1;

(II) In the context of failure on the part of the Respondent no. 1 to

explain absence of over three and half years, the CGIT observed

thus:-

"...Accordingly to me stay of 2nd Party in Japan for 3

years and 9 months is more than sufficient to consider that, he had reason to stay away from the employment.

If at all, he might have been served with the charge sheet he might have got an opportunity to put these facts before the Inquiry Officer who was supposed to

9 (2006) 1 Supreme Court Cases 530

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consider it as there was reason for 2nd Party to stay away from the job."

(III) The impugned award records the findings that the letter /

notice dated 05.03.1994 was addressed by the Petitioner only to

Ulhasnagar address despite full knowledge that the Respondent no.

1 was at the relevant time in Japan. The relevant observations are

as follows:-

"......So lastly bank asked 2nd Party to report on duty

by addressing letter dated 5th March, 1994 Ulhasnagar address asking his report on duty with to this

explanation. It is a matter of record that he was in Japan at that time still that letter was written to him at Ulhasnagar by which he was asked to report on duty

with explanation."

15] The Petitioner, at the very outset had placed reliance upon

clause 15 of the bipartite settlement, in order to justify its action.

Such reliance was placed not only in the course of conciliation

proceedings, but also in the response submitted in pursuance of the

claim statement of the Respondent no.1 before the CGIT. The plea

that the Petitioner's action was entirely consistent with clause 15 of

the bipartite settlement, was specifically raised in paragraph 17 of

the response / written statement. In fact at paragraph 14 of the

impugned award the CGIT has very specifically noted this

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contention / plea. However in the reasoning from paragraphs 16 to

31, there is absolutely no consideration of this plea / contention.

There is no discussion as to why the defence based upon clause 15

of the bipartite settlement has been rejected. The CGIT has neither

addressed itself to the factual nor the legal position which clearly

arose in the matter. This in my opinion, is sufficient to set aside the

impugned award.

16] Clause 15 of the bipartite settlement, reads as under:

"15. Voluntary Cessation of Employment by the Employees

Where an employee has not submitted any application for leave and absents himself from work for a period of 90 or more consecutive days without or beyond any

leave to his credit or absents himself for 90 or more consecutive days beyond the period of leave originally

sanctioned or subsequently extended or where there is satisfactory evidence that he has taken up employment

in India or the management is satisfied that he has no present intention of joining duties, the management may at any time thereafter give a notice to the employee's last known address calling upon the employee to report for

duty within 30 days of the notice, stating inter alia, the grounds for the management coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the

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management that he has not taken up another employment or avocation and that he has no intention of

not joining duties, the employee will be deemed to have voluntarily retired from the Bank's service on the expiry

of the said notice. In the event of the employee submitting a satisfactory reply, he shall be permitted to

report for duty thereafter within 30 days from the date of the expiry of the aforesaid notice without prejudice to the Bank's right to take any action under the law or rules of

service."

In case of an employee who has gone abroad, and has

not submitted any application for leave and absents himself for a period of 150; or more consecutive days

without or beyond any leave to his credit or absents himself for 150 or more consecutive days beyond the period of leave originally sanctioned or subsequently

extended and where the management has reasons to

believe that he has no intention of joining duties, the management may at any time thereafter give a notice to the employee's last known address calling upon the

employee to report for duty within 30 days of the notice. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the management, the employee will be

deemed to have voluntarily retired from the Bank's service on the expiry of the same notice. In the event of the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within 30 days from the date of the expiry of the aforesaid notice

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without prejudice to the Bank's right to take any action under the law or rules of service."

17] There is no serious dispute and in any case there is ample

material on record both in form of oral as well as documentary

evidence which establishes that Respondent no. 1 having gone

abroad (Japan) absented himself for a period of more than 150

consecutive days beyond the leave period originally sanctioned or

subsequently extended. The correspondence on record establishes

that applications made by the Respondent no. 1 for extension of

leave had been rejected or at least not granted. Ms Doshi accepted

the position that there is nothing either in the bipartite settlement or

in the leave rules which provides for deemed grant of leave. The

material on record also bears out that the Petitioner by notice dated

05.03.1994 called upon the Respondent no. 1 to report for duty

within 30 days. The Respondent no. 1 in his deposition has clearly

admitted the receipt of this notice by him at Japan. The Respondent

no. 1 neither reported for duty during the said period nor bothered to

even furnish any explanation. In such circumstances, there was no

reason to fault the Petitioner having reasons to believe that the

Respondent no. 1 had no intention of joining duties. Clause 15 in

terms provides that unless an employee reports for duty within 30

days of the notice or unless he gives an explanation for his absence

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to the satisfaction of the management, the employee will be deemed

to have voluntarily retired from the bank service on the expiry of the

same notice. Clearly therefore the action of the bank was in

accordance with clause 15 of bipartite settlement. I see no force in

the submissions of Ms. Doshi that clause 15 was either not attracted

or not complied with in the facts and circumstances of the present

case.

18]

In a situation where clause 15 of the bipartite settlement, is

attracted, there is no necessity of holding a departmental enquiry.

Further in such a situation it cannot be said that there is any breach

of principles of natural justice and fair play. The material on record

establishes that the Petitioner upon rejection of application for

extension of leave called upon the Respondent no. 1 to report for

duties. Thereafter specific notice dated 05.03.1994 was served

upon the Respondent no. 1 affording him opportunity to either report

for duties or to at least submit a valid explanation for the absence.

The Respondent no. 1 chose not to avail all such opportunities. The

Respondent no. 1 has reacted against the notice dated 24.05.1994

only after three years by way of preferring the appeal to the

appellate authority. In the circumstances, it can hardly be said that

there was failure to comply with the principles of natural justice and

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fair play.

19] In my opinion, the case is covered by the ruling of the

Supreme Court in the case of Syndicate Bank (supra) as also

subsequent rulings where the legal position has been reiterated.

20] In the case of Syndicate Bank (supra) in the context of very

similar provision providing for deemed voluntarily retirement on

account of inordinate and unexplained absence, the Supreme Court

observed thus :

"14. In the present case action was taken by the Bank under Clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from the

work for a period of 90 or more consecutive days. It was

thereafter that the Bank served a notice on him calling upon to report for duty within 30 days of the notice stating herein the grounds for the Bank to come to the

conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period Bank passed order

that Dayananda had voluntarily retired from the service of the Bank.

15. Now what are the requirements of principles of natural justice, which are required to be observed.

These are : (1) workman should know the nature of the complaint or accusation; (2) an opportunity to state his

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case; and (3) the management should act in good faith which means that the action of the management should

be fair, reasonable and just. All these three criteria have been fully met in the present case. Principles of natural

justice are inbuilt in Clause 16 of the Bipartite Settlement. ..........Considering the conduct of

Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that

he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was

there to give him relief on the platter though at the same time criticised his conduct during his employment with

the Bank.

16. It is no point laying stress on the principles of natural justice without understanding their scope or real

meaning.

17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of

the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation

which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that

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notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence

from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite

Settlement.

18. This undue reliance on the principles of natural

justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of

the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda

and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the

relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its

jurisdiction under Article 226 of the Constitution of India

to set aside the award."

21] In the case of Viveka Nand Sethi vs. Chairman, J & K Bank

Ltd. & Ors.10 the Supreme Court observed thus:-

"15. The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of

the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either: (1) report for duties within thirty days; (2) give his explanation for his absence satisfying the management that he has not taken any employment or

10 (2005) 5 Supreme Court Cases 337

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avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman

concerned does not join his duties within thirty days or fails to file a satisfactory explanation, as referred to

herein before, that the legal fiction shall come into force. In the instant case except for asking for grant of medical leave, he did not submit any explanation for his absence

satisfying the management that he has not taken up any other employment or avocation and that he had no intention of not joining his duties.

16. In the aforementioned fact situation we do not see

any reason as to why the Bank could not arrive at a satisfaction that the workman had no intention to join

his duties. It is interesting to note that though the said order was passed on 17-5-1984, a representation to the Bank was made by the workman to reconsider the said

decision after a period of 3 years and 2 months by a letter dated 31-7-1987.

17. Yet again a dispute was sought to be raised by issuance of a legal notice on the Bank only on 6-4-1989.

18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. .......

19. We cannot accept the submission of Mr Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartite settlement.

20. It may be true that in a case of this nature, the

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principles of natural justice were required to be complied with but the same would not mean that a full-fledged

departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned

had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view,

amounts to sufficient compliance with the requirements of the principles of natural justice.

21. Clause 2 of the bipartite settlement raises a legal

fiction, which is of wide import. Once the action on the

part of the employer is found to be fair, the court in view of such legal fiction would call upon the workman

to prove the contra. It will bear repetition to state that the only defence which came to be raised by the workman was non-applicability of the bipartite

settlement. The notice dated 31-12-1983 refers to the said settlement by necessary implication, as on the

failure of the workman to resume his duties by 15-1- 1984, it was stated that he would be deemed to have been discharged from the services of the Bank.

............... The workman ex facie appears to have accepted the said order as for a long period he maintained silence. Had he been interested in the Bank's

services, it was expected of him to resume his duties and/or file proper application for grant of medical leave with a valid medical certificate.

22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of

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estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr.

Sumitra Dash3.] The principles of natural justice are

required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a

straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and

circumstances of the case. (See State of Punjab v. Jagir

Singh4 and Karnataka SRTC v. S.G. Kotturappa5.)

22] In the case of Punjab & Sind Bank vs. Sakattar Singh 11,

the Supreme Court at paragraph 4 observed thus:

"Under this rule the employee is given an opportunity to

rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that

the employee does not require the job anymore and will stand retired from service. Thus, there is no punishment for

misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with

no satisfactory explanation thereto."

23] In the case of Regional Manager, Central Bank of India vs.

Vijay Krishna Neema & Ors.12, the Supreme Court observed that

principles of natural justice do not operate irrespective of

statutory provisions. Further the Supreme Court observed that

validity of clause 16 of Shastri Award / or provisions akin thereto

11 (2001) 1 SCC 214 12 (2009) 5 Supreme Court Cases 567

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is no longer res integra. An employee may, in certain situations,

abandon or deemed to have abandoned his job. What

constitutes abandonment may be a matter of a statutory

provision or agreement between employer and Union. Although

absence without leave for a long time may constitute a grave

misconduct on the part of the employee concerned, in view of

clause 16 of Shastri Award, an employee can be treated to have

ceased from employment.

24] In the light of the aforesaid clear rulings I am unable to

uphold the validity of the impugned award. The impugned award

is accordingly required to be set aside.

25] The finding that the Petitioner bank addressed notice dated

05.03.1994 to the Respondent no. 1 at his Ulhasnagar address

despite full knowledge that the Respondent no. 1 at the relevant

time in Japan, is totally perverse. There is material on record

which establishes that notices were addressed both to the

Ulhasnagar as well as the Japan address. The notice addressed

to Ulhasnagar was returned undelivered. However the notice

addressed at Japan was very much received by the Respondent

no. 1. In fact the Respondent no. 1 in his deposition has stated

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thus :

".....It is correct, I had received letter from the Bank dated 5th March'94. Address mentioned of Japan on

Ex-17/pg-15 now shown to me is correct......"

26] The reasoning in the impugned award that the Respondent

no. 1, apart from absenteeism was involved in no other grave

misconduct and that therefore he deserved reinstatement, is

also neither logical nor acceptable. The same is the position with

the reasoning that the stay of the Respondent no. 1 in Japan for

over three and half years by itself constitutes explanation for not

reporting to duty. Such reasoning is totally fallacious and could

not have been basis for making the impugned award and

directing reinstatement of the Respondent no. 1 with continuity

for the purposes of retiral benefits.

27] Mr. Gopalkrishnan, laid particular emphasis upon deposition

of the Respondent No. 1 (in cross) to emphasise that the reason

for absence attempted to be belatedly furnished by the

Respondent no. 1 before the Tribunal did not inspire any

confidence. In the context of medical certificates in Japanense

language furnished by the Respondent No. 1, he has deposed

that he does not know the name, qualifications or even the

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precise address of the doctor. He does not know the system of

medicine followed by the said doctor. He does not have the

prescriptions, medical purchase bills or any medical case papers

with him. He said that he was suffering from ailments like back

pain, chest pain, cold and fever. Mr. Gopalkrishnan, is right in his

submission that this is hardly a satisfactory manner to explain

absence of over three and half years. The explanation indeed

does not inspire any confidence. However in the light of legal

position in the context of clause 15 of the bipartite settlement,

there is no necessity to advert to such evidence for the purposes

of interference with the impugned award.

28] The rulings relied upon by Ms. Meena Doshi are also

inapplicable to the facts and circumstances of the present case.

In Kamal Kishore Lakshman's case (supra) the Supreme Court

held that disciplinary enquiry should normally be held before

passing order of termination of service grounded on stigmatic

allegations. There is no question of any stigma in the present

case. In Pramod Kumar Gupta's case (supra) the Petitioner in the

said case admittedly reported for duty well within the 30 days

period from the notice which requiring him to report for duties.

The decision therefore is clearly distinguishable on facts. The

case of Regional Manager, SBI (supra) concerns the scope of

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Section 25-G of the Industrial Disputes Act, 1947, which is again

not the issue in the present case. The rulings are therefore

inapplicable and in any case distinguishable. In contrast, the

rulings of the Supreme Court in the case of Syndicate Bank

(supra), J. & K. Bank Limited (supra) and Central Bank of India

(supra) afford complete answer to the contentions raised by Ms.

Doshi.

29]

In the circumstances, the impugned award is liable to be

quashed and set aside and the same is hereby quashed and set

aside. Rule is accordingly made absolute in terms of prayer

clause (a) of the petition. There shall however be no order as to

costs.

(M. S. SONAK, J.)

Chandka