Delhi High Court

M.K. Ahuja vs Syndicate Bank on 23 September, 2010

Author: Manmohan

49
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       LPA 663/2010

M.K. AHUJA                                         ..... Appellant
                                  Through: Mr. M.N. Krishnamani, Senior
                                           Advocate with Mr. Vikas Mahajan,
                                           Advocate.
                         versus

SYNDICATE BANK                                      ..... Respondent
                                  Through: Mr. S.K. Taneja, Senior Advocate
                                           with Mr. Punit Taneja, Mr. Amit
                                           Kumar, Advocate.

                                      Reserved on: 16th September, 2010
%                                     Date of Decision : 23rd September, 2010


CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?                                         Yes.
3. Whether the judgment should be reported in the Digest?                         Yes.



                                  JUDGMENT

MANMOHAN, J

CM No. 16647/2010 (exemption)

Allowed, subject to all just exceptions.

Accordingly, the application stands disposed of.

LPA 663/2010 & CM No. 16646/2010

1. The present Letters Patent Appeal has been filed challenging the

judgment and order dated 01st July, 2010 whereby the learned Single

Judge has allowed the respondent-Bank's writ petition being W.P.(C)

No.268/2003 and set aside the award dated 08th August, 2002 of the

Industrial Tribunal-cum-Labour Court (hereinafter referred to as

'Tribunal')

2. The relevant facts of the present case are that in April, 1978 the

appellant joined the respondent-Bank in non-subordinate cadre and

thereafter worked as a Clerk in various branches. Admittedly, the

appellant was absent between 29th October, 1992 and 24th January,

1993. The real controversy in the present case revolves around as to

what transpired on 25th January, 1993. While it is the case of the

appellant that he reported for duty on 25th January, 1993 and carried out

duties assigned to him, it is the case of the respondent-Bank that though

on 25th January, 1993, appellant was entrusted with work relating to

preparation of office notes, sanction letters etc, yet the appellant left the

Bank at about 12.50 p.m. without permission and even without doing

the work assigned to him. Consequently, according to respondent-

Bank, appellant cannot be deemed to be present on 25th January, 1993.

3. It is pertinent to mention that the appellant after 25 th January,

1993 neither returned for duty nor wrote any letter to the respondent-

Bank to the effect that on 25th January, 1993, he had not been given any

work or had remained in the Bank for the whole day. In fact,

admittedly, the appellant did not reply to the respondent-Bank's letter

dated 25th January, 1993. Thereafter, the respondent-Bank vide its

letter dated 03rd March, 1993 invoked Clause 17(a) of the Bi-partite

Settlement which reads 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."

4. In its reply dated 15th March, 1993, appellant for the first time

stated that he was not given any work on 25th January, 1993 and that he

was wrongly treated as on leave on the said date. The respondent-Bank

vide letter dated 24th March, 1993 informed the appellant that his

explanation was not found satisfactory and asked him to report for duty

in accordance with the aforesaid clause 17 of the Bi-partite Settlement

on or before 02nd April, 1993 in terms of letter dated 03rd March, 1993.

5. It is not disputed that the appellant did not report for duty

thereafter. Consequently, the respondent-Bank vide letter dated 17th

April, 1993 informed the appellant that in accordance with the aforesaid

Clause 17(a) of the Bi-partite Settlement, he was deemed to have

voluntarily retired from service, with effect from, 02nd April, 1993.

6. After a gap of three years, the appellant raised a dispute in 1996

and a reference was accordingly made on 30th April, 1997.

7. The Tribunal vide its order dated 08th August, 2002 set aside the

respondent-Bank's order dated 17th April, 1993 and awarded the

appellant full back wages with all consequential benefits and continuity

in service

8. Thereafter, the respondent-Bank filed a writ petition being

W.P.(C) No.268/2003 which had been allowed by the learned Single

Judge vide the impugned order.

9. Mr. M.N. Krishnamani, learned senior counsel for the appellant-

workman submitted that the Tribunal had rightly interpreted the

provisions of Clause 17 of the Bi-partite Settlement as the absence of

the appellant was not for a period of consecutive ninety days. He

pointed out that the appellant had attended office on 25th January, 1993.

He further submitted that the learned Single Judge had failed to

appreciate that Clause 17 of the Bi-partite Settlement was a stringent

provision and the same ought to have been invoked by the respondent-

Bank only in the event of conditions specified therein being fulfilled.

According to Mr. Krishnamani, since the condition of continuous

absence of the appellant-workman for consecutive ninety days was not

fulfilled, it was not open to the respondent-Bank to proceed against the

appellant-workman under Clause 17 of the Bi-partite Settlement. In

such a situation, according to Mr. Krishnamani, the respondent-Bank

could have proceeded against the appellant only under the general

provision of law by conducting a departmental inquiry on allegations of

unauthorised absence rather than invoking the stringent provision of

Clause 17 of the Bi-partite Settlement.

10. Mr. Krishnamani further submitted that the view taken by the

Tribunal was a plausible view in the facts and circumstances of the case

and the learned Single Judge should not have lightly interfered with the

findings of the Tribunal. In this connection, he relied upon the

judgments of the Supreme Court in the cases of Essen Deinki Vs.

Rajiv Kumar, (2002) 8 SCC 400 and Management of Madurantakam

Coop. Sugar Mills Ltd. Vs. S. Viswanathan, (2005) 3 SCC 193. The

relevant passage of the aforesaid judgments are reproduced

hereinbelow:-

"A. Essen Deinki Vs. Rajiv Kumar (supra) :

"2. Generally speaking, exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in the normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse recording thereof or not based on any material whatsoever resulting in manifest injustice, interference under the article is not called for."

B. Management of Madurantakam Coop. Sugar Mills Ltd.Vs. S. Viswanathan (supra)

"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere has he come to the conclusion that the finding of the Labour Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court."

11. Having heard Mr. Krishnamani at length, we are of the view that

the common thread running through the aforesaid decisions is that the

Court should not interfere with the decision of the Tribunal, unless it is

illegal/irrational, perverse or suffers from procedural impropriety or

shocks the conscience of the court, in the sense that it defies logic or

moral standards.

12. In fact, upon a perusal of the impugned order, we find that the

learned Single Judge has applied the aforesaid test stipulated by the

Apex Court and has given cogent reasons for setting aside the findings

recorded by Tribunal. The relevant portion of the impugned order is

reproduced hereinbelow :-

"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 25th 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."

13. Moreover, upon a perusal of the appeal papers, we are in

agreement with the learned Single Judge that the finding of the Tribunal

that the appellant was present on 25th January, 1993 is perverse and

illogical.

14. In our opinion, though the appellant had surfaced on the ninetieth

day, namely 25th January, 1993, but as he had left after about two hours

and that too, without doing the work assigned to him, the appellant

cannot be deemed to have been present on the said date. The

appellant's subsequent conduct as well as the fact that he did not reply

to the letter dated 25th January, 1993 clearly shows that his appearance

in the Bank on the ninetieth day of the leave was a malicious attempt on

his part to circumvent Clause 17(a) of the Bipartite Settlement.