Amar Singh Sewara vs The Manager (Now Regional ...
2005 Latest Caselaw 1167 Del

JUDGMENT

Mukundakam Sharma, J.

1. The appellant herein appearing in person assailed before us the impugned judgment and order passed by the learned Single Judge in CWP No. 8124/2002 disposed of on 16th August, 2004 and also the award dated 30th July, 2002 passed by the Central Government Industrial Tribunal-cum-Labour Court, New Delhi in Industrial Dispute No. 29/2000. By the aforesaid award the reference made by the Central Government was answered by the Tribunal holding that the order passed by the management of the Reserve Bank holding that the services of the appellant Amar Singh Sewara as having been voluntarily vacated service with effect from 9th September, 1978 was not justified, legal and appropriate and was liable to be set aside. A further direction was issued in the said award directing for converting he period of his absence from 19th June, 1978 to 7th July, 1997 into extraordinary leave. While issuing the aforesaid direction an observation was made that the aforesaid period of absence would not be counted for any type of service benefit like increment, promotion, gratuity etc. but the appellant should be reinstated on his substantive post with admissible pay for that post by giving him the opportunity to join the service and his pay from 8th July, 1997 to the date of his reinstatement would be pad to him according to his basic pay. The aforesaid award passed by the Central Government Industrial Tribunal-cum-Labour Court was, however, set aside by the learned Single Judge by his order dated 16th August, 2004 However, an order with regard to Section 17B of the Industrial Disputes Act was passed by issuing certain directions with regard to payment of minimum wages due to the workman/appellant. The said order of the learned Single Judge is under challenge in this appeal.

2. The question that was referred for adjudication of the learned Tribunal was as follows:-

Whether the action of the Manager, Reserve Bank of India, Parliament Street, New Delhi in treating Sh. Amar Singh Sewara, Clerk Gr. II, without enquiring into his medical fitness specially when he has been allowed and advised by the Bank to get medical treatment for his mental illness, is justified, valid and reasonable? If not to what relief and benefit the workman is entitled to?

4. The facts leading to making a reference on the aforesaid terms are set out in the impugned award as also in the impugned judgment and order. Therefore, we deem it not necessary to reiterate the same in our judgment and order. The Tribunal, after receipt of the aforesaid reference, received evidence adduced by the parties including documentary evidence. The management, namely, the respondent submitted an affidavit of MW-1 i.e. of S.K. Garg, Assistant General Manager, Reserve Bank and he was cross-examined by the workman. The workman also submitted his affidavit in support of his claim statement and he was also cross-examined. After recording evidence, in the aforesaid manner, the learned Central Government Industrial Tribunal-cum-Labour Court passed the award holding that the services of the appellant, as having been voluntarily vacated service with effect from 9th September, 1978, was not justifiable, legal and proper. The same was accordingly set aside with a further direction that the period of his absence from 19th June, 1978 to 7th July, 1997 would be converted into extraordinary leave but on reinstatement the appellant would be entitled to his pay and salary only from 8th July, 1997 and that he shall not be entitled to any benefit of the past such as increment, promotion, gratuity etc.

5. Being aggrieved by the said award passed, a writ petition was filed in this court which was registered as Writ Petition No. 8124/2002. The learned Single Judge upon consideration of the pleadings filed before the learned Tribunal and referring to the award passed by the learned Tribunal and in the light of the decision of the Supreme Court in G.T. Lad v. Chemical and Fibres of India Limited and in Buckingham and Carnatic Co. Ltd. v. Venkatiah held that the absence of the workman/appellant for a period as long as 18-19 years without due intimation to the respondent would clearly fall within the category of abandonment of service. The learned Single Judge has accepted the version of the appellant that absence for certain period was caused due to illness of the appellant but the same was not accepted as a valid excuse for his absence for long 18-19 years as there was no evidence to suggest that the circumstances were such that the appellant/workman or anyone of his family could not have intimated the respondent the precise reasons for his absence or even submit an appropriate application for leave. It was held as follows:-

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The period of 18 years silence is far too long to be taken lightly and seeing the length of time, it is not possible to reach any conclusion other than the conclusion that the respondent/workman had abandoned service.

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The absence of few months can, of course, be explained but certainly not absence of 18 years and that too with complete silence on the part of the respondent/workman.

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6. The aforesaid part of the conclusion reached by the learned Single Judge was assailed before us by the appellant, who appears in person. We have heard him at length. It is clearly established from the records that the appellant after his appointment with the respondent/bank served only for about 40 days. It is also established from the record that on 28th June, 1978, a letter dated 19th June, 1978 was received from the appellant whereby the appellant informed the respondent/bank that he wasick and was not in a position to join his duties. Since the appellant had only worked for 40 days and he remained absent for days more than his entitlement for casual leave and since the said application for leave was submitted without any supportingedical certificate, letters were issued to the appellant to report for duty. However, two subsequent letters sent by the respondent on 5th July, 1978 and 17th July, 1978 were returned by the postal authority with the remarks 'Not available, left without address'. A memorandum dated 5th August, 1978 was also sent by the respondent bank at all the three addresses available with the bank advising the appellant to resume duty or submit his leave application together with medical certificate if heas ill, latest by 21st August, 1978 failing which it was intimated that he would be deemed to have voluntarily vacated his appointment in the bank. The appellant received the said memorandum but despite receipt of the same there was no response from the appellant. Thereafter also, memorandum dated 1st September, 1978 was issued to him by the respondent asking him to comply with the bank' earlier directions failing which he would deemed to have voluntarily vacated his appointment w.e.f. 9th September, 1978. The said memorandum was also received by the appellant but there was no response from him. Consequently, an office order was issued by the respondent dated 26th September, 1978 treating the appellant as having voluntarily vacated his appointment. It is after about 18-19 years i.e. some time in June, 1997, the appellant/workman submitted an application to the respondent bank that he is medically fit and he should be allowed to continue his duties. The said application was sent by the appellant after a final order was passed as far back as in 1978 and since there was no reason for which the said prayer of the appellant could be agreed to by the respondent, the same was rejected by the appellant. Being aggrieved by the same, the appellant raised an industrial dispute wherein the aforesaid impugned award came to be passed.

7. The learned Single Judge in his judgment and order considered the fact that the appellant worked only for 40 days with the respondent and thereafter he remained absent for about 18-19 years despite opportunities granted by the respondent to report back for duty or to furnish an application for leave. The learned Single Judge, in the facts and circumstances of the case, held that the absence of the appellant for as long as 18-19 years without due intimation to the respondent bank would clearly fall within the category of voluntary abandonment of service. We fully agree with the aforesaid conclusion arrived at by the learned Single Judge, for the appellant worked only for 40 days with the respondent and thereafter he did not report for duty. He wanly enjoying the status of a temporary employee, when he served the respondent for 40 days. However, despite repeated correspondences from the respondent bank, he did not join duties for about three months. The natural presumption would be that he voluntarily abandoned his service. Some of the letters sent by the bank directing him to join duties have been received by him. Even despite receipt of the same, no steps were taken by him or by any of his family members to submit an application for lease, if he was at all supported by a medical certificate. The petitioner was absolutely silent for 18-19 years. Considering the entire facts and circumstances of the case, we find no reason to interfere with the finding recorded in the judgment and order passed by the learned Single Judge.

8. The last aspect is in respect of order passed by the learned Single Judge under Section 17B of the Industrial Disputes Act. The appellant was paid under Section 17B of the aforesaid Act @ Rs. 646.40 p.m. on the basis of his last drawn salary. Thereafter, pursuant to the order passed by the learned Single Judge dated 16th August, 2004, the appellant has been paid @ Rs. 4,020/- p.m for the period 30.7.2002 to 16.8.2004 treating Rs. 4,020/- as minimum wages. However, the respondents have filed a chart fore us stating that the total minimum pay and allowances payable to a graduate CI/C and E Grade II in the month of July, 2002 at the initial stage of pay was Rs. 6,635.45 p.m. The award passed by the Central Government Industrial Tribunal cum Labour Court is dated 30th July, 2002. Keeping in view the above facts, we feel that the appellant is entitled to Rs. 6,635.45 per month as minimum wages for the period 30.7.2002 to 16.8.2004 We order accordingly. It may be relevant to state here that in the case of Dena Bank v. Kiriti Kumar T. Patel the Supreme Court has held that Section 17B of the aforesaid Act does not preclude the High Court or the Supreme Court from granting better benefits 'more just and equitable on the faces of the case then contemplated by the said provision to a workman. The balance payment due and payable to the appellant in terms of this order shall be made within a period of three months from the date of receipt of this order failing which the respondents shall be liable to pay interest @ 12 % p.a to the appellant on the balance amount till the date of payment.

9. Appeal stands disposed of in terms of the aforesaid order. No costs.