Delhi High Court
K.C. Kothari vs The Syndicate Bank And Anr. on 5 December, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 22nd January, 2004, passed by the Industrial Tribunal, whereby the reference was answered against the petitioner.
2. The relevant facts in brief are that the petitioner was working as an Army Guard with the respondent bank since 1983. He was posted at Guru Teg Bahadur Nagar Branch of the Bank. He started absenting himself from duty without any sanctioned leave and without prior intimation, without submitting leave application since 16th August, 1991. The Division Office of the respondent, vide letter dated 31st October, 1991 called upon him to report for duty immediately. He was also informed that he has been posted now at Palam Branch and has been relieved from G.T.B. Nagar Branch, so he should report at Palam Branch. The petitioner did not report for duty. Another letter dated 23rd November, 1991 was written to the petitioner that he should immediately report for duty at Palam Branch failing which, the respondent would be constrained to take action against him as per rules and procedure. The petitioner still did not report for duty. The respondent sent another letter dated 3rd December, 1991, asking the petitioner to report for duty within three days of the receipt of letter and submit an explanation and leave application for his previous absence. The petitioner, vide his letter dated 10th December, 1991 handed over the receipt of letters dated 31st October, 1991, 23rd November, 1991 and 3rd December, 1991, but expressed his inability to report for duty. He made a request that the management should transfer him to Saharanpur, Haridwar or Kankhal Branch to enable him to look after his ailing wife and perform duty as well. The respondent wrote another letter dated 19th December, 1991, giving the petitioner a final opportunity to report for duty along with explanation. He was also informed that his request for transfer to Saharanpur, Haridwar or Kankhal Branch has been turned down. The petitioner still did not report for duty. He, however, wrote a letter dated 31st January, 1992 and acknowledging the receipt of earlier letters. When the petitioner failed to report for duty, the respondent issued notice dated 11.2.1992 to the petitioner directing him to report for duty within 30 days of the notice i.e. on or before 11.3.1992, failing which, the bank shall be constrained to consider that he has voluntarily retired from service in terms of the provisions of Bipartite Settlement. The petitioner was also told to give explanation for unauthorized absence. The notice was duly served upon the petitioner and the petitioner sent a reply stating that he was unable to report for duty and he also gave explanation about his unauthorized absence that his wife was ill. When the petitioner did not report for duty, the respondent, in terms of the Bipartite Settlement, considered that the petitioner deemed to have voluntarily retired on the expiry of the notice period. After this decision of the respondent, the petitioner raised an industrial dispute which was referred for adjudication in following terms:
Whether the action of the management of Syndicate Bank, New Delhi' in terminating the service of Shri K.C. Kothari by treating him as having voluntary retired from service w.e.f. 11.3.1992 is legal and justified. If not to what relief the said workman is entitled.
3. The Tribunal found that there was no force in the claim of the petitioner that his services were illegally terminated. The Tribunal observed that in all letters which the petitioner wrote to the respondent, he refused to join duty at Palam Branch where he was transferred. The transfer was one of the conditions of his service and he was duty bound to join at Palam Branch where he was posted. He could not put a condition to the authority to transfer him at a particular place. The Tribunal also observed that he was rightly deemed to have voluntarily retired in view of the Bipartite Settlement.
4. There is no dispute about the facts in this case. It is not disputed by the petitioner that he was governed by Bipartite Settlement. The relevant Clause is as under:
17.Voluntary Cessation of Employment by the Employee The earlier provisions relating to the voluntary cessation of employment by the employee in the earlier settlements shall stand substituted by the following:
a. When an employee absents himself from work for a period of 90 or more consecutive days, without submitting any application or leave or for its extension or without any leave to his credit or beyond the period of leave leave sanctioned originally/subsequently or when there is a satisfactory evidence that he has taken upon employment in India or when the management is reasonable satisfied that he has no intention of joining duties, the management may at any time thereafter give a notice to the employee at his last known address calling upon him to report for duty within 30 days of th date of the notice, stating inter alia the grounds fro 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 of the notice or gives an explanation for his absence within the said period of 30 days satisfying the 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.
5. It is not disputed that the respondent wrote letters to the petitioner and gave notice, informing him that he would be deemed to have voluntarily retired, if he failed to report for duty. It is also not disputed that he proceeded on leave without any application and without intimation and his leave was not sanctioned at any point of time. The action taken by the management/respondent, was in terms of Bipartite Settlement entered into between the bank and its employees union. The petitioner has failed to point out any perversity in the award.
6. In view of my discussion, I find no reason to interfere with the award passed by the Tribunal. The writ petition is hereby dismissed. No orders as to costs.
