State Bank Of India Through Its ... vs Man Mohan Sharma
2006 Latest Caselaw 2254 Del

JUDGMENT

Shiv Narayan Dhingra, J.

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1. By this writ petition, the petitioner has challenged the validity of award dated 8.7.2004 passed by CGIT cum Labour Court II, New Delhi whereby the reference was answered against the petitioner and in favor of the workman.

2. Briefly the facts are that the respondent was working as a clerk in main Branch of Dehradun of the petitioner bank. As per the petitioner the respondent indulged in certain financial irregularities on 10.2.1990 to benefit his relatives for which he was issued a charge-sheet. Due to administrative exigencies the petitioner bank transferred the respondent on 9.6.1990 from Dehradun to Bhiri Branch, District Chamoli (then U.P.). The respondent refused to accept the letter of transfer dated 9.6.1990 and the said letter was sent by registered post at his last recorded address viz. 14, Khurbura Mohalla, Dehradun. The respondent did not join at the place of his transfer. The representatives of the union of the petitioner bank on 18.6.1990 and 20.6.1990 held agitation and protests against the transfer of the respondent to Bhiri Branch. The petitioner at the request of the respondent made through office bearers of SBI Staff Association, considered the demand sympathetically and transferred the respondent from Bhiri Branch to Mohabewala Branch within Dehradun vide order dated 11.7.1990 and intimated him. The respondent did not join Mohabewala Branch, Dehradun as well and remained unauthorisedly absent from the petitioner bank without any intimation. However, the respondent being aggrieved by the order dated 11.7.1990 Page 0201 transferring him to Mohabewala Branch, Dehradun filed a writ petition before the High Court of Judicature at Allahabad praying for quashing of the transfer order dated 11.7.1990.

3. Since the respondent had been absenting from his duty without any intimation and without sanctioned leave, unauthorisedly from 9.6.1990 petitioner bank vide its letter dated 1.9.1990 advised the respondent to report for duty and explain the reasons for his absence. The respondent sent one application on 20.9.1990 and another on 24.10.1990 to the previous branch from where he was already transferred, instead of sending it to Mohabewala Branch where he was posted, not recognising his transfer. In his leave applications, he stated that he was running ill health. He did not enclose any medical certificate. The Branch Manager of Mohabewala where the respondent was posted i.e. Controlling Authority of the respondent, did not receive any reply to the letter dated 1.9.1990 and wrote another letter dated 1.10.1990 to the respondent asking him to join duty within 30 days. The petitioner also made enquiries from postal authorities regarding delivery of the letter dated 1.9.1990. The postal authorities confirmed in writing that the respondent refused to receive the letter. This letter was sent by the petitioner, at the last recorded address of the respondent i.e. 14, Khurbara Mohalla, Dehradun. The respondent was also advised by the previous branch where he had sent his leave applications, to communicate with his present controlling authority and his two letters/applications dated 20.9.90 and 24.10.90 received at the previous branch were returned to him. On 3.11.1990, the respondent was advised that since he had failed to report for duty within 30 days, he was deemed to have voluntary retired from the bank service w.e.f. 3.11.1990 in terms of the Bipartite Agreement entered into between the bank and its employees' Union. Soon after the deemed voluntary retirement, the respondent reported for duty to bank on 10.12.1990. He was told that he has already been voluntary retired in terms of the Bipartite Agreement. The respondent then raised an industrial dispute, which was referred for adjudication to the CGIT cum Labour Court in following terms:

Whether the action of the management of the State Bank of India in treating the workman Shri Manmohan Sharma, permanent clerk, as voluntarily retired from the service of the Bank w.e.f 3.11.1990 on account of his alleged absence from duty without leave is legal and justified? If not, to what relief(s) the workman is entitled to?

4. The respondent in his statement of claim filed before CGIT took the stand that he held the position of Union Secretary in Dehradun Branch for several years and had been taking leading part in organising strikes, administrative agitations etc. on behalf of the union. The management had become prejudiced and biased towards him on account of his role in union activities and decided to harass and victimize him. The workman fell sick on 7.6.1990 and sent application to the Manager (C&I), Dehradun Main Branch for two days leave and then he remained further sick and continued being ill up to 10.12.1990. He claimed that he had been sending leave applications to Page 0202 Manager C&I, State Bank of India Main Branch, Dehradun along with medical certificates. Thereafter, when he got recovered, he reported for duty at Dehradun Main Branch on 10.12.1990. He was directed to report at Mohabewala Branch. There also he was not allowed to join duty so he sent a letter dated 10.12.1990 to the Branch Manager, State Bank of India Mohabewala, Branch by registered post. He did not receive any communication from the Bank informing him the rejection of his leave application sent by him along with medical certificate. He was having around nine months sick leave to his account at the time when he had fallen sick. The workman for the first time received communication from the Regional Manager vide his letter dated 21.12.1990 informing him that the Bank has voluntary retired him due to his absence from the duty. He filed an appeal against the order of deemed voluntary retirement to the Appellate Authority but his appeal was rejected by the Dy. General Manager. Thereafter, he raised the dispute before the CGIT cum Labour Court.

5. The stand of the management before the Tribunal was that the respondent made false averments in the statement of claim. The respondent did not send any intimation of availing leave from 9.6.1990 onwards. Two leave applications were sent by him at Dehradun Main Branch, while he was posted at Mohabewala Branch. The two applications were returned to him for sending to Mohabewala Branch. The respondent despite knowing that he was transferred and posted at Mohabewala Branch, having filed a writ against transfer order, did not send him two leave applications to Mohabewala Branch deliberately. He did not recognise his transfer. He absented continuously from 9.6.1990 for more than 90 days without any intimation and sanctioned leave. Action was taken against him only as per rules.

6. The Bipartite Agreement between the bank and the Union of Employees reads as under:

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 employees reports for duty within 30 days or unless he gives an explanation for his absence 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 expiry of the aforesaid notice without prejudice to the bank's right to take any action under the law or rules of service.

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7. It is undisputed that the respondent could be deemed to have voluntary retired in accordance with this agreement. The only issue is whether the necessary requirements of above agreement were fulfillled or not. It is undisputed that respondent did not send any leave application before 20.9.1990. This leave application was sent by him at wrong branch without a medical certificate. The bank was supposed to serve a 30 days notice in terms of the Bipartite Agreement at last recorded address of the respondent. The Bank's contention had been that the last recorded address of the respondent as per Bank's record was 14, Khurbura Mohalla, Dehradun and the bank had sent all communications and notice to the respondent at this last known address. It is also a plea of the Bank that the address of the respondent as per service record was 14, Khurbura Mohalla and not 20 Khurbura Mohalla. In any case, the letters sent by the bank at 14, Khurbura Mohalla had been reaching the respondent and he had been either refusing the letter or receiving the communication at 14, Khurbura Mohalla. Both the addresses are of same Mohalla and the letters even if addressed to the respondent at 14, Khurbara Mohalla were reaching the respondent, who was allegedly living at 20, Khurbura Mohalla, another house in the same Mohalla and the post-man knew very well and made no mistake in delivering the letters. It is submitted that the letter was written to the postal authorities for confirmation of the delivery of letter of the bank to the respondent and the postal authorities did not report that the respondent was not living at the given address but reported that the respondent refused to receive the communication. The Bank also contended that had the petitioner not not received his transfer order sent to him at 14, Khurbura Mohalla, the petitioner would not have been able to prefer the writ petition before High Court of Judicature at Allahabad. The fact that the petitioner preferred a writ petition at High Court of Judicature at Allahabad against his transfer order dated 11.7.1990 transferring him to Mohabewala Branch shows that the petitioner was not only aware of his transfer but was receiving all communications at 14, Khurbura Mohalla. It is also submitted that in his writ petition, before Allahabad High Court, the respondent gave his address as 'Khurbura Mohalla, Dehradun'. No house number was mentioned, which would show that Khurbura Mohalla was a compact and integrated habitat and mere mentioning of name of the person and Khurbura Mohalla was sufficient to serve the person living there. It is further pointed out that respondent sent his first leave application dated 20.9.90 to old branch only after issuance of notice by the petitioner. The respondent, as per postal report refused the notice, but seems to have learnt the contents of notice and instead of answering the notice sent a leave application without any medical certificate at Main Branch. On the other hand the plea of the respondent is that the respondent was living at 14 Khurbura Mohalla in 1970 when he initially joined the bank. He was transferred to Merrut in 1975 from Dehradun then he left this address and he was transferred back from Merrut to Dehradun again in 1978 and after his transfer back in 1978 he started living at 20 Khurbura Mohalla and not at 14 Khurbura Mohalla. He had intimated to the Bank about his new address however, the bank had not Page 0204 changed its record. He however, failed to place on record any application made by him for recording change in his address in the service record either when he was transferred to Merrut or when again transferred to Dehradun. Address recorded in service record is normally permanent address of the employee and is not changed with every transfer. He submitted that the maintenance of service record was unilateral act of the Bank and it was the duty of the Bank to keep itself updated about the address. His further contention was that the had got issued an Identity Card from the bank on which the address mentioned was as 20 Khurbura Mohalla. He had also obtained loan for scooter giving his address as 20 Khurbura Mohalla. All this shows that the Bank was aware of his address as 20 Khurbura Mohalla but the Bank officials did not send communication to him at 20 Khurbara Mohalla but sent at 14 Khurbara Mohalla which was not his address. He denied that he received any communication sent by the Bank at 14 Khurbura Mohalla. Regarding the writ petition filed by him before High Court of Judicature at Allahabad he submitted that the same was filed by Association of Employees of the Bank of their own, without his knowledge. He was not aware of the writ petition challenging his transfer.

8. I have heard the counsel for parties and perused the record. The leave application which respondent sent to the petitioner at old posting place dated 20.9.1990 reads as under:

20.9.90

The Manager (C&I)

State Bank of India

Convent Road

Dehradun

Sir,

In connection of my previous Leave Application, please extend my leave till 5 Oct, 1990 because still I am running in ill health. I will submit my medical on resuming my duties. I also request your good-self to release my pay immediately.

Thanking you,

Yours faithfully,

(Man Mohan) Clerk

The leave application which the respondent sent on 24.10.1990 to his previous branch reads as under:

Registered 24.10.90

The Manager (C&I)

State Bank of India

Convent Road

Dehradun (U.P.)

Sir,

In connection of my previous Leave Application, please extend my leave till 6 Nov, 1990 because still I am running in ill health. I will Page 0205 submit my medical on resuming my duties, further let me know the fate of my Life Insurance Policy that if it is deducted well in time.

Once again I request your good-self to release my pay immediately.

Thanking you,

Yours faithfully,

(Man Mohan) Clerk

20, Khurbura Mohala, Dehradun

9. A perusal of both the above leave applications would show that the respondent did not send medical certificate along with them although he claimed in his statement of claim and counter that he sent Medical Certificate along with leave applications. The Bipartite Agreement in respect of medical leave provides that every leave application for sick leave should be accompanied by Medical Certificate.

10. The entire record would show that the respondent refused to accept his transfer from main branch Dehradun to another place. When he was transferred from main branch to Bhiri branch he proceeded on two days leave. He being Union Secretary got pressure exerted through union and an agitation was done by the union with the result that the transfer to Bhiri Branch was canceled under the pressure of union and he was transferred back to Dehradun though to another branch within the Dehradun. This transfer was also not acceptable to the respondent, who challenged the transfer by way of writ petition before the High Court of Judicature at Allahabad. The plea of the respondent that it was the union, who challenged his transfer without his knowledge is untenable and non-believable. The writ petition was filed in the name of the respondent. No writ petition is accepted in the High Court without an affidavit of the writ petitioner and without vakalatnama of the writ petitioner in favor of his advocate. The respondent's plea that he was not aware of the transfer is therefore, baseless. When he did not get relief from the Allahabad High Court still he did not accept the transfer and refused to acknowledge the transfer. His initial leave was only for two days i.e. 7th & 8th June, 1990. He did not inform the bank about his being ill or being on leave from 9th June, onward, until bank sent a notice dated 1.9.1990 at his address 14, Khurburra Mohalla, as available in service record. He sent his two leave applications only after sending of notice by the bank, that also to the old branch from where he had already been transferred. The leave applications were returned to him for sending to the appropriate branch but he did not send the same to the Mohabewala Branch where he was posted. It is also a fact that the wife of the respondent was working in the same Bank in Dehradun itself and the respondent must be aware of the developments going on, but the respondent showed an adamant attitude and did not bother to reply the notice sent by the bank under Clause 16 of the Bipartite Agreement. The said notice was received back by the petitioner with an endorsement of refusal. This clearly reflected the intention of the respondent that he did not want to resume the duties at the place of his posting and he had no explanation. He resorted to evasive tactics. He was under the impression that because he was a union leader so, he was above law. In recent Supreme Court judgments, Syndicate Page 0206 Bank v. General Secretary, Syndicate Bank Staff Association and Anr. almost in similar circumstances Supreme Court held that in the above circumstances presumption arose in favor of Bank and against the respondent. Since, the bank had acted under clause 16 of the Bipartite Settlement, Supreme Court held that the voluntary retirement of employee was justified. The plea that the notice under Clause 16 of the Bipartite Agreement was not duly served is not available to the respondent since he refused to receive the notice and the notice was returned by the postal authorities. The bank had sent the notice at the address available in the service record of the respondent. The respondent's plea that he had made application for change of service record is not believable since he had failed to produce any application so made. His obtaining loan and getting an I.Card at 20 Khurbura Mohalla could not make the position different because service record does not get changed when an employee obtains loan or gets an I.Card. Service record is changed when an employee makes an application for change of his address.

11. It is now settled law that the Bipartite Agreement entered into between the Banks and the unions is binding on the employees. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd. , Supreme Court observed that on receipt of notice contemplated under the agreement, the workman must either (1) report for duties within 30 days; (2) give his explanation for his absence satisfying the management he has not taken any other employment or avocation; and (3) show that he has no intention of not joining the duties.

12. In Y.P. Sarabhai v. Union Bank of India and Anr. 2006 II LLJ 1122, the appellant did not report for duty when he was transferred to Chennai and took the plea of his illness. Supreme Court held that the appellant/delinquent employee was not entitled to any relief since the reason behind his not joining duties was that he was adamant to evade his transfer. Similar is the case here. Here also the respondent made all efforts to stall his transfer and when he did not succeed, he continued on sick leave and did not send applications for leave to the branch where he was transferred and attached no medical certificates along with the application and took false plea in the claim that he had sent the medical certificate, before the Labour Court and refused to acknowledge the transfer. He did not send his applications to the right branch deliberately despite getting no relief against transfer from the High Court of Allahabad.

13. I consider that in view of the facts stated above and the law as laid down by the Supreme Court, the tribunal's decision of directing reinstatement of the respondent with full back wages is perverse and is liable to be set aside. The same is hereby set aside. The writ petition is allowed. No orders as to costs.