Syndicate Bank vs Sh. B.N. Pandey & Anr.
2010 Latest Caselaw 3018 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 1st July, 2010.

+                           W.P.(C) No.268/2003

%

SYNDICATE BANK                                           ..... Petitioner
                            Through: Mr. S.K. Taneja, Sr. Advocate with Mr.
                                     Puneet Taneja, Advocate

                                      Versus
SH. B.N. PANDEY & ANR.                       ..... Respondents
                   Through: Mr. Vikas Mahajan & Mr. A.N. Singh,
                            Advocates

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.       Whether reporters of Local papers may
         be allowed to see the judgment?                       NO

2.       To be referred to the reporter or not?                NO

3.       Whether the judgment should be reported               NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner Bank in this writ petition impugns the award dated 8th

August, 2002 of the Industrial Tribunal holding the action of the petitioner

Bank of treating the respondent no.2 workman to have voluntarily retired

from the services of the petitioner Bank with effect from 30th April, 1993 to

be unjust, illegal and unfair and quashing the same and further holding the

respondent workman to be entitled to continuity of service in the petitioner

Bank with full back wages and all consequential benefits. This Court vide ex

parte order dated 10th January, 2003, while issuing notice of the petition

stayed the operation of the award subject to the petitioner Bank depositing

50% of the back wages in this Court and which amount was directed to be

kept in a fixed deposit. Pursuant to the said direction a sum of

Rs.6,66,123.07p was deposited in this Court. The respondent workman

applied for release of the said amount. This Court vide order dated 3 rd April,

2003 permitted the release of a sum of Rs.66,000/- only to the respondent

workman without furnishing any security. Subsequently, vide order dated

2nd September, 2004 the balance amount was also directed to be released in

favour of the respondent workman subject to his furnishing the security.

Though a security bond was filed by the respondent workman and to which

objections were preferred by the petitioner Bank, but the respondent

workman failed to take steps thereafter and as such the balance amount

remains deposited in this Court. The respondent workman also applied under

Section 17B of the I.D. Act and which application was allowed vide order

dated 30th March, 2006. The respondent workman filed an affidavit

undertaking to this Court, to in the event of this writ petition succeeding,

refund to the petitioner Bank the excess amount received over and above the

last drawn wages. The counsels for the parties have been heard.

2. The action aforesaid against the respondent workman was taken by

the petitioner Bank in accordance with a clause in the Bipartite Agreement

between the Indian Banks' Association and the Bank employees and which

Clause is as under:

"When an employee absents himself from work for a period of 90 or more consecutive days, without submitting any application for leave or its extension or without any leave to his credit or beyond the period of leave sanctioned originally / subsequently or when there is a satisfactory evidence that he has taken up employment in India or when the management is reasonably 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 the date of the notice, stating inter alia the grounds for 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 any 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."

3. The Supreme Court in D.K. Yadav Vs. J.M.A. Industries Ltd. (1993)

3 SCC 259 has held that even where the Standing Orders of the employer

provide for dismissal from service for unexplained absence, the same has to

be read with the principles of natural justice and without conducting

domestic inquiry and without giving an opportunity of being heard,

termination of service on the said ground cannot be effected. Recently in

Vice Chancellor, Banaras Hindu University Vs. Shrikant AIR 2006 SC

2304, it was held that although laying down a provision providing for

deemed abandonment from service may be permissible in law, an action

taken thereunder must be fair and reasonable so as to satisfy the

requirements of Article 14 of the Constitution; if the action is found to be

illogical in nature, the same cannot be sustained.

4. However, in Punjab & Sind Bank Vs. Sakattar Singh

MANU/SC/0733/2000, it was held that no inquiry may be conducted where

the Standing Orders of the Bank provide a procedure for treating such

absentee employee to have deemed to have voluntarily retired after a

particular period of unauthorized absence. To the same effect is the recent

dicta The Regional Manager, Central Bank of India Vs. Vijay Krishna

Neema AIR 2009 SC 2200. Thus what follows from the aforesaid

judgments is that such a Clause, as aforesaid, in the Bipartite Agreement

between the Bank and its employees is valid.

5. The chronology of events in the present case may be noticed.

6. It is not disputed that the respondent workman absented himself

unauthorizedly and without any permission with effect from 29 th October,

1992. The petitioner Bank filed before the Industrial Tribunal a copy of its

letter dated 4th November, 1992 to the respondent workman, complaining of

his unauthorized absence and calling upon him to rejoin duty within 3 days;

the respondent workman admitted the said letter. It is also not disputed that

the respondent workman after 29th October, 1992 surfaced first at the place

of his posting on 25th January, 1993. While it is the case of the petitioner

Bank that the respondent workman on 25th January, 1993 was entrusted with

the work relating to preparation of office notes, sanction letters etc. but the

respondent workman left at about 12:50 hours without permission and

without noting down his movement in the movement register and without

doing the work allotted to him; it is the case of the respondent workman that

he was not assigned any work but still remained in the Bank for the entire

day. The petitioner Bank in this regard, filed before the Industrial Tribunal

office copy of letter dated 25th January, 1993 to the respondent workman

recording its version and intimating the respondent workman that owing to

his conduct as aforesaid, he was not deemed to be present on 25th January,

1993; the respondent workman admitted the said letter. It is also not

disputed that the respondent workman after 25th January, 1993 neither

returned for duty nor wrote any letter to the petitioner Bank to the effect that

he was on 25th January, 1993 not given any work or had remained in the

Bank the whole day; he also did not reply to the letter dated 25th January,

1993 of the petitioner Bank. Thereafter the petitioner Bank vide its letter

dated 3rd March, 1993 to the respondent workman and the receipt / service

whereof is also not controverted, invoked the Clause aforesaid in the

Bipartite Agreement and informed the respondent workman that if he failed

to report for duty within 30 days i.e. on or before 2nd April, 1993 or fails to

give satisfactory explanation for his absence within 30 days, he will be

deemed to have voluntarily retired from the Bank's service. A reply dated

15th March, 1993 was given by the respondent workman to the said letter of

the petitioner Bank in which he, for the first time, stated that he was not

given work on 25th January, 1993 and also controverted that he had left at

12:50 p.m. and contended that he was being wrongly treated as on leave on

25th January, 1993. The respondent workman in the said reply also made

other grievances of his not being given temporary special allowances, there

being no suitable atmosphere at the place of his posting, the behaviour meted

out to him being insulting and his loan application being not processed; the

respondent workman by the said letter intimated to the petitioner Bank that

he would not report for work to the place where posted unless he was given

posting to the branch of his choice. The petitioner Bank vide letter dated

24th March, 1993 informed the respondent workman that his explanation was

not found satisfactory and asking him to report for duty on or before 2nd

April, 1993 in terms of the letter dated 3rd March, 1993 (supra). It is not

disputed that the respondent workman did not so report for duty. The

petitioner Bank, in the circumstances, vide letter dated 17th April, 1993

informed the respondent workman that in accordance with the clause

aforesaid in the Bipartite Agreement, he was deemed to have voluntarily

retired from the Bank's service with effect from 2nd April, 1993.

7. The dispute was raised by the respondent workman after four years

therefrom in or about the year 1996 and the reference was made on 30th

April, 1997. It appears that before the Conciliation Officer the petitioner

Bank gave an offer of settlement to the effect that it would take back the

respondent workman provided he gives up his claim for wages during the

period of his absence. The said settlement proposal of the petitioner Bank

was rejected by the respondent workman.

8. The Industrial Tribunal has vide award impugned in this petition held:

(i) That the settlement proposal aforesaid given by the petitioner

Bank before the Conciliation Officer amounted to its admission

of illegality of the order treating the respondent workman to

have voluntarily retired.

(ii) That the Clause aforesaid of the Bipartite Agreement was not

attracted because it could be invoked in case of absenteeism of

90 days; in the present case the respondent workman had

admittedly returned for duty on the 90 th day i.e. on 25th January,

1993.

(iii) That in the notice dated 3rd March, 1993 (supra) issued to the

respondent workman, no grounds were stated for coming to the

conclusion that the respondent workman had no intention of

joining duties or that he had taken up employment anywhere

else. The said notice was thus not in accordance with the

requirements of the Clause aforesaid.

(iv) That no reasons were given for not accepting the explanation

furnished by the respondent workman in the letter dated 15 th

March, 1993.

(v) That from the language of the letter dated 24th March, 1993

(supra), it appears that the Bank authorities were annoyed with

the respondent workman because of his repeatedly asking for

his transfer.

(vi) It was also the case of the petitioner Bank that the respondent

workman had during his absence visited abroad without taking

any permission and that he had also contested the Municipal

election without taking any permission from the petitioner

Bank. The Industrial Tribunal held that the factum of the

respondent workman having visited abroad was not proved and

no permission was required by the respondent workman for

contesting the elections - the elections were contested in the

year 1997 i.e. after four years of the order of termination.

The Industrial Tribunal accordingly made the award as aforesaid.

9. The senior counsel for the petitioner Bank has contended that the

respondent workman has become a political leader and has been contesting

elections and is now no longer interested in employment in the petitioner

Bank. It is further contended that the Clause aforesaid in the Bi-partite

Agreement has been agreed to voluntarily by the employees of the Bank and

the respondent workman is bound by the same and cannot be permitted to

make a mockery of the same. It is further contended that the said Clause

cannot be interpreted in a pedantic manner; an employee cannot defeat the

said Clause by reporting for duty on the 90th day or just before the expiry of

90 days and thereafter remain absent again and contend that 90 days of

unauthorized absence has not been completed. He has further urged that the

respondent workman could not insist on being transferred and had been

given sufficient opportunity to report for duty and which he had failed to

avail. Reliance is placed on:

(i) Regional Manager, Bank of Baroda Vs. Anita Nandrajog

2009 LLR 1135 laying down that the behaviour of an employee

of remaining absent without leave for long periods is regrettable

and unfortunate; no establishment can function if it allows its

employees to behave in such a manner. The order of the Bank

of treating such an employee to have voluntarily retired was

upheld.

(ii) Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. (2005) 5

SCC 337 laying down that the Clause aforesaid of the Bi-partite

Agreement between the Bank and its employees is a complete

code by itself - It lays down a complete machinery as to how

and in what manner the employer can arrive at a satisfaction

that the workman has no intention to join his duties - it raises a

legal fiction which is of wide import and once the action on the

part of the employer is found to be fair the onus is on the

workman to prove to the contrary. It was further held that the

Clause is clear and unambiguous and should be given a literal

meaning. It was yet further held that for taking action under the

said Clause a full-fledged department proceedings was not

required to be initiated.

10. Per contra, the counsel for the respondent workman has urged that the

scope of interference by this Court, in exercise of power under Article 226

of the Constitution of India in the findings of the Industrial Adjudicator,

particularly findings of fact is limited; if two views are possible, the view

taken by the Industrial Adjudicator is to be upheld. Reliance in this regard is

placed on:

          (i)      Essen Deinki Vs. Rajiv Kumar (2002) 8 SCC 400.

         (ii)     Management of Madurantakam Cooperative Sugar Mills Ltd.

                  Vs. S. Viswanathan (2005) 3 SCC 193.

         (iii)    Zameer Ahmed Vs. Appellate Authority 2007 (95) DRJ 90.

         (iv)     DTC Vs. Pradeep Kumar 2008 III AD (Delhi) 326.

It is further urged that the election for the Municipal Council

contested by the respondent workman after four years of termination is

irrelevant.

11. The reasoning given by the Industrial Adjudicator of the petitioner

Bank having admitted the illegality of its action owing to having offered the

settlement proposal of reinstating the respondent workman without back

wages before the Conciliation Officer is clearly perverse. The Legislature

has provided for the step of conciliation before reference of a dispute in an

attempt to minimize disputes between the management and its employees

and to sustain industrial harmony. The offers / counter offers given before

the Conciliation Officer cannot be treated as an admission by a party and by

their very nature are without prejudice to the respective rights and

contentions. In fact, the Arbitration & Conciliation Act, 1996 in Section 81

thereof codifies that the proposals made in an attempt for conciliation do not

bind the parties in the event of the conciliation failing. If the Industrial

Adjudicators were to start treating such offers / counter offers, given in an

attempt to avoid a dispute as an admission by the parties, that would run

contrary to the spirit of conciliation and would negate the very purpose of

conciliation and neither of the parties to the potential dispute would give any

offer or counter offer for settlement for the fear of the same being read

against it.

12. The interpretation placed by the Industrial Adjudicator in the present

case on the Clause aforesaid of the Bi-partite Agreement is also found to be

illogical. The said Clause was inserted in the negotiated Bi-partite

Agreement between the banks and their employees to enable the Banks to, in

the event of unauthorized absenteeism, treat the employee to have

voluntarily retired, rather than being required to proceed against the

employee for misconduct. The Banks perform multiple / diverse functions

in the present day economy. The entire trade and commerce is dependent on

the Banks with the transactions in cash diminishing day-by-day. Naturally,

for Banks to provide effective Banking amenities, the Banks have to depend

on their staff / employees. If the staff / employees remain unauthorizedly

absent, the Banks cannot be expected to function smoothly and which in turn

would hamper the trade and commerce. The said Clause having been agreed

by the employees themselves cannot be reduced to a mockery and

interpreted so as to be un-implementable. If the reasoning / interpretation of

the Industrial Adjudicator in the present case were to be accepted, an

employee can frustrate the said Clause by never allowing 90 days of

continuous absence and by reporting for duty just short of 90 days. In the

present case, the respondent workman appears to have reported on 25 th

January, 1993 only to frustrate the said clause in as much as he continued to

absent thereafter also. As aforesaid, the Clause has been upheld in Sakattar

Singh (supra). The Clause has to be implemented in its spirit rather than in

the manner as done by the Industrial Adjudicator. If the Clause was to be

interpreted in its right spirit, I fail to see any reason as to how the conduct of

the respondent workman would not fall within the clutches of the said

Clause.

13. What strikes one immediately is that neither before the Industrial

Tribunal nor before this Court has any reason been given for the admitted

unauthorized absenteeism of the respondent workman. If the respondent

workman had any grievance regarding his working conditions, he ought to

have pursued the same. Nothing has come on record of any representation,

complaint or other remedies taken by the respondent workman. In the

absence of the same, there is no other option but to conclude that the same is

nothing but an alibi to get out of the clutches of the Clause aforesaid of the

Bipartite Agreement.

14. The version of the petitioner Bank with respect to the happenings on

25th January, 1993 is believable as opposed to that of the respondent

workman. The petitioner Bank on 25th January, 1993 itself issued the letter

regarding the same. On the contrary, the respondent workman did not raise

any grievance whatsoever of the alleged unfair treatment meted out to him

on that date. If he had not been given any work, in the normal course of

human behaviour, he would have recorded the same or asked for work. In

any case, he would not have stopped reporting for duty. His admitted

absence after 25th January, 1993, supports the version of the petitioner Bank

of the visit on 25th January, 1993 being brief and only intended to put a

spoke in the wheel of the applicability / operation of the Clause aforesaid of

the Bipartite Agreement.

15. Not only did the respondent workman not report for duty after 25th

January, 1993 but admittedly did not report for duty within 30 days of the

letter dated 3rd March, 1993. Though the respondent workman vide his

communication dated 15th March, 1993 again sought to give the excuse of

being insulted at the place of his posting and demanded transfer to some

other place but chose to remain absent. No employee has a right to be

posted at any place. Moreover, the requests for transfer even if entertainable

have to be through a proper channel; the same was not being done. Only

whenever the respondent workman was called to report for work was the

excuse of the working conditions in the place of posting being unfourable,

taken. The facts of the present case speak for themselves. The contest by

the respondent workman for the Municipal Elections clearly shows that the

respondent workman was at that time pursuing his political ambitions / goals

and was not satisfied merely being a Bank employee. He was then looking

for pastures which appeared greener to him than a job in the Bank. If in the

face of such facts also a Bank would be held to be not entitled to invoke

Clause aforesaid of the Bipartite Agreement, then I fail to see in what

conditions such Clause can be invoked.

16. This Court in reaching the aforesaid conclusion is not interfering with

any finding of fact. The facts in this case are rather not in dispute at all. It is

only the inference drawn from the said facts by the Tribunal which is being

interfered with by this Court and which is within the domain of judicial

review under Article 226. The inference drawn by the Industrial

Adjudicator from the admitted facts is found to be perverse inasmuch as the

barometer of reasonability of this Court does not allow the conclusion

reached by the Industrial Adjudicator to be held such which a reasonable

person can be expected to reach.

17. Resultantly, the writ petition succeeds. The award impugned in the

writ petition is set aside / quashed. The action of the petitioner Bank of

treating the respondent workman to have voluntarily retired in accordance

with the Clause aforesaid of the Bipartite Agreement is held to be legal,

valid and justified and in accordance with the said Clause. The respondent

workman in accordance with the undertaking given to the Court is directed

to, within six weeks from today refund to the petitioner Bank the sum of

Rs.66,000/- received by him in pursuance to the order of this Court and also

the excess amount over and above the last drawn wages in terms of the order

under Section 17B of the I.D. Act failing which the same shall incur interest

at the rate of 9% per annum. The Registry is also directed to after, six weeks

herefrom, refund to the petitioner Bank the amount lying deposited in this

Court together with interest accrued thereon. However, in the facts of the

case, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 gsr