Delhi High Court
U.P. Singh vs Punjab National Bank on 10 February, 2011
Author: Sanjiv Khanna
LPA No. 481/2010 Page 1 of 19
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LETTERS PATENT APPEAL NO. 481 OF 2010
Reserved on : 6th January, 2011.
% Date of Decision: 10th February, 2011.
U.P. SINGH .... Appellant in person.
VERSUS
PUNJAB NATIONAL BANK .....Respondent.
Through Mr. Rajat Arora, advocate.
CORAM:
HON'BLE MR. JUSTICE DIPAK MISRA, THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether 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 YES
in the Digest ?
SANJIV KHANNA, J.:
Mr. U.P. Singh, appellant who appears in person, assails
judgment and order dated 26th February, 2010 of the learned Single
Judge allowing the writ petition no. 7834/2003 filed by the
respondent-Punjab National Bank (hereinafter referred to as PNB, for
short) quashing the Award dated 27th August, 2003 passed by the
Central Government Industrial Tribunal- cum- Labour Court (CGIT,
for short). By the impugned judgment, the learned Single Judge has
set aside the CGIT's finding that the action of the respondent-PNB
LPA No. 481/2010 Page 2 of 19
deeming the appellant to have been voluntarily retired was not
justified. Relief of reinstatement in service with full back wages and
consequential benefits in the impugned Award has been quashed.
2. The appellant-workman was appointed in service with the
respondent-PNB on 20th June, 1977. He was initially working at
respondent-PNB's branch office Barabanki (U.P.) and was transferred
to branch office Zaidpur, Barabanki and then to Shahjanhanpur (U.P.)
in August, 1978. On 14th June, 1982 he was suspended from services
of the respondent-PNB for acts of disorderly behavior. Pursuant to the
finding recorded in the disciplinary proceedings, the appellant was
held guilty of all charges and awarded punishment of stoppage of two
graded increments with cumulative effect vide order/letter dated 28th
September, 1983. The said order has been quoted by the appellant in
the Appeal. Relevant portion reads:
―.......Accordingly, the punishment of ‗Dismissal
without Notice' has been reduced to ‗Stoppage of two
Graded Increments with cumulative effect' which the
undersigned hereby confirm.
You will not be paid anything except the
subsistence allowance, already drawn by you during
your period of suspension, as per rules.
You are accordingly advised to report for further
duties to the Manager, BO: Bhagwantnagar, Unnao
immediately. You will be deemed to have been
reinstated in the Bank's service from the date you
report for the duty at BO : Bhagwantnagar, Unnao.‖
(emphasis supplied)
3. The appellant did not join duty at the branch office
Bhagwantnagar, Unnao. Relying upon clause XVI of Fourth Bipartite
LPA No. 481/2010 Page 3 of 19
Settlement dated 17th September, 1984, by order dated 5th December,
1984 the appellant was deemed to have voluntarily retired from
service.
4. The appellant wrote protest letters and after about six years on
28th August, 1990 raised a dispute before the Assistant Labour
Commissioner and on 15th November, 1991, the following reference
was made :
―Whether the action of the Management of Punjab
National Bank in treating Shri U.P.Singh,
Clerk/Cashier as deemed to have retired voluntarily
w.e.f. 5.12.1984 is justified? If not, to what relief is the
workman entitled to?‖
5. By Award dated 27th August, 2003, reference was answered in
favour of the appellant holding, inter alia, that Clause XVI of the
Fourth Bipartite Agreement was wrongly invoked by the respondent-
PNB. The appellant was wrongfully not reinstated in service and the
respondent-PNB had remained silent to the lawful demand of the
appellant to revoke his suspension, to be reinstated in service and
resume his duties. It was observed, the respondent-PNB had failed to
prove and establish a genuine cause for transfer of the appellant from
District Shahjanhanpur to Bhagwantnagar, Unnao. CGIT, in view of
the said findings, directed that the appellant was entitled to
reinstatement in service with full back wages w.e.f. 28 th September,
1983 along with interest @ 9% p.a. and all other consequential
benefits.
LPA No. 481/2010 Page 4 of 19
6. Learned Single Judge in the impugned judgment has set aside
the aforesaid finding holding that Clause XVI of the Fourth Bipartite
Settlement was applicable and the post held by the appellant was
transferable. Learned Single Judge has specifically noticed and has
rejected the ratio/finding of the CGIT that during suspension, contract
of employment is suspended and consequently Rules of the
respondent-PNB including bipartite agreement containing the
provision of deemed voluntary retirement were not applicable.
Learned Single Judge has held that reliance placed by the CGIT in the
decision in Hotel Imperial versus Hotel Workers' Union AIR 1959
SC 1342 was incorrect in view of the exposition of law in the
subsequent decisions of the Supreme Court in Khem Chand versus
Union of India AIR 1963 SC 687, Gidroniya versus The State of
Madhya Pradesh AIR 1970 SC 1494, Capt. M. Paul Anthony versus
Bharat Gold Mines Ltd. AIR 1999 SC 1416 and Ram Lakhan versus
Presiding Officer (2001) 3 SCC 161 .
7. Challenging the said findings of the learned single Judge, the
appellant has before us relied upon the following observations of the
Supreme Court in Hotel Imperial (supra):
―10. The first question therefore that falls for
consideration is the extent of the power of the
employer to suspend an employee under the ordinary
law of master and servant. It is now well settled that
the power to suspend, in the sense of a right to forbid a
servant to work, is not an implied term in an ordinary
contract between master and servant, and that such a
power can only be the creature either of a statute
governing the contract, or of an express term in the
contract itself. Ordinarily, therefore, the absence of
such power either as an express term in the contract or
in the rules framed under some statute would mean that
LPA No. 481/2010 Page 5 of 19
the master would have no power to suspend a workman
and even if he does so in the sense that he forbids the
employee to work, he will have to pay wages during
the so-called period of suspension. Where, however,
there is power to suspend either in the contract of
employment or in the statute or the rules framed
thereunder, the suspension has the effect of temporarily
suspending the relation of master and servant with the
consequence that the servant is not bound to render
service and the master is not bound to pay. These
principles of the ordinary law of master and servant are
well settled and have not been disputed before us by
either party. Reference in this connection may be made
to Hanley v. Pease and Partners Limited, Wallwork v.
Fielding, Secretary of State for India-in-Council v.
Surendra Nath Goswami and Rura Ram v. Divisional
Superintendent, N.W. Railway.‖
8. In T. Cajee versus U. Jormanik Siem and another AIR 1961
SC 276, the Supreme Court has clarified the aforesaid observations
made in the case of Hotel Imperial (supra) as under :-
"13. ..........It is urged on the basis of these
observations that in any case the respondent could not
be suspended. Suspension is of two kinds. In the first
place, suspension may be as a punishment, but the
present is not a case of this kind of suspension; in the
second place interim suspension may be made pending
inquiry into a case where removal is the result sought.
It was this type of interim suspension which was dealt
with in the case of Hotel Imperial and it was pointed
out that without an express term in the contract or
without some provision of a statute or the rules there
could not be interim suspension in the sense that the
master could withhold the wages of the servant. But
that case did not lay down that the master could not
forbid the servant from working while he was inquiring
into his conduct with a view to removing him from
service. It was specifically said there that if the master
does so, namely, forbids the servant to work and thus
in fact suspends him as an interim measure he will
have to pay the wages during the period of interim
suspension. These wages or payment for the work done
or emoluments of the office held could not be withheld
in whole or in part unless there is power to make an
order of interim suspension either in the contract of
employment or in the statute or the rules framed
thereunder. The effect of that decision is that in the
absence of such power the master can pass an order of
interim suspension but he will have to pay the servant
according to the terms of contract between them.......‖
LPA No. 481/2010 Page 6 of 19
9. The aforesaid dictum of the Supreme Court, as rightly pointed
out by the learned Single Judge, was considered and explained in R.P.
Kapur versus Union of India AIR 1964 SC 687 and it was opined as
follows:
―10. ............ The General law on the
subject of suspension has been laid down by this Court
in two cases, namely, Management of Hotel Imperial
New Delhi v. Hostel Workers' Union, and T. Cajee v.
U. Jormanik Siem. These two cases lay down that it is
well settled that under the ordinary law of master and
servant the power to suspend the servant without pay
could not be implied as a term in an ordinary contract
of service between the master and the servant but must
arise either from an express term in the contract itself
or a statutory provision governing such contract. It was
further held that an order of interim suspension could
be passed against an employee while inquiry was
pending into his conduct even though there was no
specific provision to that effect in his terms of
appointment or in the rules. But in such a case he
would be entitled to his remuneration for the period of
his interim suspension if there is no statute or rule
existing under which it could be withheld.
11. The general principle therefore is that an
employer can suspend an employee pending an enquiry
into his conduct and the only question that can arise on
such suspension will relate to the payment during the
period of such suspension. If there is no express term
in the contract relating to suspension and payment
during such suspension or if there is no statutory
provision in any law or rule, the employee is entitled to
his full remuneration for the period of his interim
suspension; on the other hand if there is a term in this
respect in the contract or there is a provision in the
statute or the rules framed thereunder providing for the
scale of payment during suspension, the payment
would be in accordance therewith. These general
principles in our opinion apply with equal force in a
case where the government is the employer and a
public servant is the employee with this modification
that in view of the peculiar structural hierarchy of
Government, the employer in the case of government,
must be held to be the authority which has the power to
appoint a public servant. On general principles
therefore the authority entitled to appoint a public
servant would be entitled to suspend him pending a
departmental enquiry into his conduct or pending a
criminal proceeding, which may eventually result in a
departmental enquiry against him. This general
principle is illustrated by the provision in Section 16 of
the General Clauses Act, 10 of 1897, which lays down
that where any Central Act or Regulation gives power
of appointment that includes the power to suspend or
dismiss unless a different intention appears. Though
this provision does not directly apply in the present
LPA No. 481/2010 Page 7 of 19
case, it is in consonance with the general law of master
and servant. But what amount should be paid to the
public servant during such suspension will depend
upon the provisions of the statute or rule in that
connection. If there is such a provision the payment
during suspension will be in accordance therewith. But
if there is no such provision, the public servant will be
entitled to his full emoluments during the period of
suspension. This suspension must be distinguished
from suspension as punishment which is a different
matter altogether depending upon the rules in that
behalf. On general principles therefore the government,
like any other employer, would have a right to suspend
a public servant in one of two ways. It may suspend
any public servant pending departmental enquiry or
pending criminal proceedings; this may be called
interim suspension. Or the government may proceed to
hold a departmental enquiry and after his being found
guilty order suspension as a punishment if the rules so
permit. This will be suspension as a penalty. These
general principles will apply to all public servants but
they will naturally be subject to the provisions of
Article 314 and this brings us to an investigation of
what was the right of a member of the former Secretary
of State's Services in the matter of suspension, whether
as a penalty or otherwise.‖
10. Subsequently, in Balvantrai Ratilal Patel versus State of
Maharastra AIR 1968 SC 800 it was reiterated as under:
―3. The first question to be considered in this appeal
is whether Government had the power to suspend the
appellant by its order dated February 13, 1950 pending
enquiry into his alleged misconduct. It was contended
on behalf of the appellant that the power to suspend is
not an implied term in an ordinary contract between
master and servant and that such a power can only be
the creature either of a statute governing the contract,
or of an express term in the contract itself. It was urged
that there was no express provision in the Bombay
Civil Services Rules granting a power to the
Government to suspend a Government servant pending
enquiry into the allegations made against him. The
argument was put forward that in the absence of any
express provision either in the contract of employment
or in any statute or statutory rules governing such
employment, there was no power to suspend a public
servant pending inquiry into the allegations of his
misconduct. We are unable to accept the argument put
forward on behalf of the appellant as correct. The
general law on the subject of suspension has been laid
down by this Court in three cases viz. Management of
Hotel Imperial, New Delhi v. Hotel Workers Union, T.
Cajee v. U. Jormanik Siem, and R.P. Kapur v. Union of
India. It is now well settled that the power to suspend,
in the sense of a right to forbid a servant to work, is not
an implied term in an ordinary contract between master
and servant, and that such a power can only be the
creature either of a statute governing the contract, or of
an express, term in the contract itself. Ordinarily,
LPA No. 481/2010 Page 8 of 19
therefore, the absence of such power either as an
express term in the contract or in the rules framed
under some statute would mean that the master would
have no power to suspend a workman and even if he
does so in the sense that he forbids the employee to
work, he will have to pay wages during the period of
suspension. Where, however, there is power to suspend
either in the contract of employment or in the statute or
the rules framed thereunder, the order of suspension
has the effect of temporarily suspending the
relationship of master and servant with the
consequence that the servant is not bound to render
service and the master is not bound to pay. This
principle of law of master and servant is well-
established: (See Hanley v. Pease & Partners, Ltd.,
Wallwork v. Fielding, and the judgment of Cotton, L.J.
in Boston Deep Sea Fishing and Ice Co. v. Ansell). It is
equally well settled that an order of interim suspension
can be passed against the employee while an inquiry is
pending into his conduct even though there is no such
term in the contract of appointment or in the rules, but
in such a case the employee would be entitled to his
remuneration for the period of suspension if there is no
statute or rule under which it could be withheld. In this
connection it is important to notice the distinction
between suspending the contract of service of an
officer and suspending an officer from performing the
duties of his office on the basis that the contract is
subsisting. The suspension in the latter sense is always
an implied term in every contract of service. When an
officer is suspended in this sense it means that the
Government merely issues a direction to the officer
that so long as the contract is subsisting and till the
time the officer is legally dismissed he must not do
anything in the discharge of the duties of his office. In
other words, the employer is regarded as issuing an
order to the employee which, because the contract is
subsisting, the employee must obey.
4. The general principle therefore is that an
employer can suspend an employee pending an inquiry
into his misconduct and the only question that can arise
in such suspension will relate to payment during the
period of such suspension. If there is no express term
relating to payment during such suspension or if there
is no statutory provision in any enactment or rule the
employee is entitled to his full remuneration for the
period of his interim suspension. On the other hand, if
there is a term in this respect in the contract of
employment or if there is a provision in the statute or
the rules framed thereunder providing for the scale of
payment during suspension, the payment will be made
in accordance therewith. This principle applies with
equal force in a case where the Government is an
employer and a public servant is an employee with this
qualification that in view of the peculiar structural
hierarchy of Government administration, the employer
in the case of employment by Government must be
held to be the authority which has the power to appoint
the public servant concerned. It follows therefore that
the authority entitled to appoint the public servant is
entitled to suspend him pending a departmental enquiry
into his conduct or pending a criminal proceeding,
which may eventually result in a departmental enquiry
LPA No. 481/2010 Page 9 of 19
against him. But what amount should be paid to the
public servant during such suspension will depend
upon the provisions of the statute or statutory rule in
that connection. If there is such a provision the
payment during suspension will be in accordance
therewith. But if there is no such provision, the public
servant will be entitled to his full emoluments during
the period of suspension. On general principles
therefore the government like any other employer,
would have a right to suspend a public servant in one
of two ways. It may suspend any public servant
pending departmental enquiry or pending criminal
proceedings; this may be called interim suspension.
The Government may also proceed to hold a
departmental enquiry and after his being found guilty
order suspension as a punishment if the rules so permit.
This will be suspension as a penalty. As we have
already pointed out, the question as to what amount
should be paid to the public servant during the period
of interim suspension or suspension as a punishment
will depend upon the provisions of the statute or
statutory rules made in that connection.‖
11. In the light of the aforesaid ratio, it is clear that an order
suspending workman pending enquiry does not bring an end the
employer-employee relationship as contended by the appellant. The
employee continues to remain an employee during the period of
suspension pending departmental enquiry.
12. The aforesaid proposition gets further fructified by the view
expressed by the Constitution Bench in Khem Chand (supra) wherein
it has been observed :-
―15. ........ An order of suspension of a
government servant does not put an end to his service
under the Government. He continues to be a member of
the service in spite of the order of suspension. .........
The real effect of the order of suspension is that though
he continued to be a member of the Government
service he was not permitted to work, and further,
during the period of his suspension he was paid only
some allowance - generally called ―subsistence
allowance‖ - which is normally less than his salary - in
stead of the pay and allowances he would have been
entitled to if he had not been suspended. There is no
doubt that the order of suspension affects a government
servant injuriously. There is no basis for thinking
LPA No. 481/2010 Page 10 of 19
however that because of the order of suspension he
ceases to be member of the service.....‖
13. A larger bench of the Supreme Court in V.P. Gindroniya versus
State of Madhya Pradesh and another (1970) 1 SCC 362 have
reiterated and pointed out the distinction between suspending a
contract of service of a servant and suspending an employee from
performing his duties at office on the basis of a contract which is
subsisting. Suspension in the latter case is an implied term of the
contract of service. This means that the employer issues a direction to
the employee that he should not do the service required of him for a
particular period. The employer can issue the said direction or order to
the employee because the contract of service is subsisting. Suspension
does not bring to an end or supersede the contract of service during
suspension of an employee pending inquiry. Employer-employee
relationship subsists and continues.
14. Similar view has been taken in Capt. M.Paul Anthony (supra)
wherein it has been held:
―26. To place an employee under suspension
is an unqualified right of the employer. This right is
conceded to the employer in service jurisprudence
everywhere. It has even received statutory recognition
under service rules framed by various authorities,
including the Government of India and the State
Governments. [See: for example, Rule 10 of the
Central Civil Services (Classification, Control &
Appeal) Rules.] Even under the General Clauses Act,
1897, this right is conceded to the employer by Section
16 which, inter alia, provides that power to appoint
includes power to suspend or dismiss.
27. The order of suspension does not put an end to
an employee's service and he continues to be a
member of the service though he is not permitted to
work and is paid only subsistence allowance which is
LPA No. 481/2010 Page 11 of 19
less than his salary. (See: State of M.P. v. State of
Maharashtra.)‖
[Reference can be also made to para 7 in the case of Ram
Lakhan (supra)]
15. We have quoted above, the order/letter dated 28th September,
1983 passed by the respondent-PNB. The said order specifically states
that the appellant was required to report for duty to Manager, Branch
Office Bhagwantnagar, Unnao immediately and would be deemed to
be reinstated in service from the date he reports for duty. In other
words, the order of suspension was recalled/withdrawn and the
appellant was required to report for duty. The aforesaid action of the
respondent-PNB was in accord with para 521.10(b) of the Shastri
Award. It is not possible to accept the contention of the appellant that
a composite order imposing penalty and directing reinstatement could
not be passed. There is no such statutory bar or prohibition. Even
common sense cannot support the said contention.
16. The appellant had submitted that the order transferring the
appellant and asking him to report at Branch Office Bhagwantnagar,
Unnao amounted to punishment. It is not possible to agree with the
said contention. There is no such specific finding given by the CGIT.
The employment was transferable and after the suspension was
revoked, the appellant was required to be posted. Facts
noted above
show that the appellant had been earlier transferred from Barabanki to
Zaidpur and then to Shahjanhanpur. As per the appellant himself,
Bhagwantnagar, Unnao is located at a distance of 350 kms from
Shahjanhanpur. Place of posting has to be as per the requirement of
the employer and is an exigency of service. As the appellant did not
report to Branch Office Bhagwantnagar, Unnao within 30 days, the
respondent-PNB wrote a letter dated 12th May, 1984 at his permanent
and last known address by registered A.D. and UPC but the appellant
did not respond. Show cause notice dated 18th August, 1984 was
issued to the appellant warning him. Thereafter advertisement was
published in the newspaper on 24th August, 1984 drawing attention of
the appellant to Clause XVI of the Fourth Bipartite Settlement under
the heading ‗voluntary cessation of employment by the employees'.
Publication giving a similar warning was again taken out in a
newspaper on 8th October, 1984 and the appellant was informed that
unless he joins his duty he would be deemed to have retired from the
service of the respondent-PNB. The appellant failed to respond and
join duty and vide order dated 5th December, 1984 the appellant was
deemed to have voluntarily retired from service. The respondent-PNB
has paid subsistence allowance till 5th September, 1984 and thereafter
stopped paying the same. It is apparent from the aforesaid facts that
the appellant was adamant and unmindful of the repeated notices and
warnings issued to him. He did not bother or care to report for duty. It
is not possible to agree with the contention of the appellant that
writing letters or going on hunger strike shows and proves that the
appellant was interested in working but was being prevented from
joining duty. On the other hand, it shows that the appellant had
adopted a contiguous, inflexible, confrontationist and hostile attitude.
It is not possible to accept the contention of the appellant that asking
him to report at Branch Office Bhagwantnagar, Unnao, located at a
distance of 350 kms, without paying him the cost/expenses for travel,
entitled him to disregard and disobey the said Order. The appellant
was being paid subsistence allowance and after reporting for duty
could have claimed transportation cost/expenses, as per Rules. It is
also apparent from the conduct of the appellant that he is responsible
for what has happened and the respondent-PNB were left with no
option but to take action in accordance with the Fourth Bipartite
Settlement.
17. As far as Clause XVI of the Fourth Bipartite Settlement is
concerned, the appellant has not questioned or challenged the validity
of the said Clause inspite of being specifically asked the said question.
Learned single Judge has examined the Clause XVI of the Fourth
Bipartite Settlement in paras 21 to 24 of the impugned judgment. He
has also referred to two decisions of the Supreme Court in the case of
Delhi Transport Corporation versus Sardar Singh (2004) 7 SCC 574
and Metropolitan Transport Corporation versus B. Venkatesh (2009)
9 SCC 601.
18. In Viveka Nand Sethi versus Chairman, J&K Bank Ltd (2005)
5 SCC 337 it was observed:
―21. Clause 2 of the bipartite settlement raises a
legal fiction, which is of wide import. Once the action
on the part of the employer is found to be fair, the court
in view of such legal fiction would call upon the
workman to prove the contra. It will bear repetition to
state that the only defence which came to be raised by
the workman was non-applicability of the bipartite
settlement. The notice dated 31-12-1983 refers to the
said settlement by necessary implication, as on the
failure of the workman to resume his duties by 15-1-
1984, it was stated that he would be deemed to have
been discharged from the services of the Bank. Yet
again in terms of the memorandum dated 20-2-1984,
attention of the workman was drawn to the fact that his
application for grant of leave was neither in the
prescribed form nor any medical certificate was
attached thereto. It was pointed out that the medical
certificate shows that he was under the doctor's
treatment from 22-10-1983 to 22-1-1984 and as such
he should have reported for duties on 23-1-1984 and as
he failed to do so, it gave rise to an inference that he
was not interested to continue in the Bank's services.
He did not submit any satisfactory explanation nor did
he file any valid medical certificate. It was in that
situation, the order dated 17-5-1984 was issued which
again referred to the provisions contained in
memorandum of settlement dated 8-9-1983. The
workman ex facie appears to have accepted the said
order as for a long period he maintained silence. Had
he been interested in the Bank's services, it was
expected of him to resume his duties and/or file proper
application for grant of medical leave with a valid
medical certificate.
22. The principle of natural justice, it is trite, is no
unruly horse. When facts are admitted, an enquiry
would be an empty formality. Even the principle of
estoppel will apply. [See Gurjeewan Garewal (Dr.) v.
Dr. Sumitra Dash.] The principles of natural justice are
required to be complied with having regard to the fact
situation obtaining therein. It cannot be put in a
straitjacket formula. It cannot be applied in a vacuum
without reference to the relevant facts and
circumstances of the case. (See State of Punjab v. Jagir
Singh and Karnataka SRTC v. S.G. Kotturappa.)
23. The contention raised at the Bar appears to be
squarely covered by two decisions of this Court
relied upon by Mr Alex. In Syndicate Bank Wadhwa, J.
speaking for the Division Bench observed:
―14. Two principles emerge from the
decisions: (1) principles of natural justice and
duty to act in a just, fair and reasonable manner
have to be read in the Certified Standing Orders
which have statutory force. These can be
applied by the Labour Court and the Industrial
Tribunal even to relations between the
management and workman though based on
contractual obligations; and (2) where domestic
inquiry was not held or it was vitiated for some
reason the Tribunal or Court adjudicating an
industrial dispute can itself go into the question
raised before it on the basis of the evidence and
other material on record.
15. In the present case action was taken by
the Bank under clause 16 of the Bipartite
Settlement. It is not disputed that Dayananda
absented himself from work for a period of 90
or more consecutive days. It was thereafter that
the Bank served a notice on him calling upon
him to report for duty within 30 days of the
notice stating therein the grounds for the Bank
to come to the conclusion that Dayananda had
no intention of joining duties. Dayananda did
not respond to the notice at all. On the expiry of
the notice period the Bank passed orders that
Dayananda had voluntarily retired from the
service of the Bank.‖
It was further held:
―18. The Bank has followed the
requirements of clause 16 of the Bipartite
Settlement. It rightly held that Dayananda has
voluntarily retired from the service of the Bank.
Under these circumstances it was not necessary
for the Bank to hold any inquiry before passing
the order. An inquiry would have been
necessary if Dayananda had submitted his
explanation which was not acceptable to the
Bank or contended that he did report for duty
but was not allowed to join by the Bank.
Nothing of the like has happened here.
Assuming for a moment that inquiry was
necessitated, evidence led before the Tribunal
clearly showed that notice was given to
Dayananda and it is he who defaulted and
offered no explanation of his absence from duty
and did not report for duty within 30 days of
the notice as required in clause 16 of the
Bipartite Settlement.‖
19. Recently, in Regional Manager, Central Bank of India versus
Vijay Krishna Neema AIR 2009 SC 2200 it has been held:
―13. Clause 16 of the Shastri Award reads as
under:
―16. 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 days 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 thirty 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
employee reports for duty within thirty 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
thirty 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
services.‖
14. The said Award provides for the mode and manner
in which service of notice shall be effected in the
following terms:
―Issue of notices and orders.--Notices which
are required to be given shall be served
individually on the employees affected and
their acknowledgments taken, and shall also be
exhibited on the notice boards of the bank at
the offices or establishments concerned. Such
notices as are so exhibited shall be in English
and also in the principal language of the district
or locality in which each such office or
establishment is situated. Any notice, order,
charge-sheet, communication or intimation
which is meant for an individual employee
shall be in a language understood by the
employee concerned. In the case of an absent
employee notice shall be sent to him by
registered post, with acknowledgment due.‖
15. The question as regards validity of Clause 16 of
Shastri Award and/or provisions akin thereto is no longer
res integra. An employee may, in certain situations,
abandon or deemed to have abandoned his job. What
constitutes abandonment may be a matter of a statutory
provision or agreement between the employer and the
Union. Although absence without leave for a long time
may constitute a grave misconduct on the part of the
employee concerned, in a case of this nature, in view of
Clause 16 of the Shastri Award, an employee can be
treated to have ceased from employment.
16. In Viveka Nand Sethi v. J&K Bank Ltd. this Court,
inter alia, relying upon the decision of this Court in
Punjab & Sind Bank v. Sakattar Singh and Syndicate
Bank v. Staff Assn., held as under: (Viveka Nand Sethi
case)
―15. The bipartite settlement is clear and
unambiguous. It should be given a literal
meaning. A bare perusal of the said settlement
would show that on receipt of a notice
contemplated thereunder, the workman must
either: (1) report for duties within thirty days;
(2) give his explanation for his absence
satisfying the management that he has not taken
any employment or avocation; and (3) show
that he has no intention of not joining the
duties. It is, thus, only when the workman
concerned does not join his duties within thirty
days or fails to file a satisfactory explanation,
as referred to hereinbefore, that the legal fiction
shall come into force. In the instant case except
for asking for grant of medical leave, he did not
submit any explanation for his absence
satisfying the management that he has not taken
up any other employment or avocation and that
he had no intention of not joining his duties.
* * *
20. It may be true that in a case of this
nature, the principles of natural justice were
required to be complied with but the same
would not mean that a full-fledged
departmental proceeding was required to be
initiated. A limited enquiry as to whether the
employee concerned had sufficient explanation
for not reporting to duties after the period of
leave had expired or failure on his part on being
asked so to do, in our considered view, amounts
to sufficient compliance with the requirements
of the principles of natural justice.‖
The same view was reiterated by this Court in New India
Assurance Co. Ltd. v. Vipin Behari Lal Srivastava.
17. Principle of natural justice, it is trite, does not
operate irrespective of the statutory provisions. It was not
a case where like Uptron India Ltd. v. Shammi Bhan and
Scooters India Ltd. v. M. Mohammad Yaqub, no notice
was required to be issued. Clause 16 of the Shastri Award
provides for issuance of such notice. If despite service of
notice the employee did not report for duty, the
consequences thereof would ensue.
18. In Banaras Hindu University v. Shrikant, upon
referring to D.K. Yadav v. J.M.A. Industries Ltd., Uptron
India Ltd. and Scooters India Ltd., it was opined:
(Shrikant case)
―57. The matter may, however, be different
in a case where despite having been given an
opportunity of hearing, explanation regarding
his unauthorised absence is not forthcoming or
despite giving him an opportunity to join his
duty, he fails to do so, as was the case in
Punjab & Sind Bank v. Sakattar Singh.‖
19. This Court upon considering Viveka Nand Sethi,
held as under: (Shrikant case)
―60. A provision relating to abandonment of
service came up for consideration yet again in
Viveka Nand Sethi v. J&K Bank Ltd. before a
Division Bench of this Court. This Court
opined that although in a case of that nature,
principles of natural justice were required to be
complied with, a full-fledged departmental
enquiry may not be necessary, holding:
‗20. ... A limited enquiry as to whether the
employee concerned had sufficient explanation
for not reporting to duties after the period of
leave had expired or failure on his part on being
asked so to do, in our considered view, amounts
to sufficient compliance with the requirements
of the principles of natural justice.'
61. Mr Dwivedi placed strong reliance upon
the decision of this Court in Aligarh Muslim
University v. Mansoor Ali Khan. In that case,
interpretation of Rule 5(8)(ii) came up for
consideration which is in the following terms:
‗5. (8)(ii) An officer or other employee who
absents himself without leave or remains absent
without leave after the expiry of the leave
granted to him, shall, if he is permitted to rejoin
duty, be entitled to no leave allowance or salary
for the period of such absence and such period
will be debited against his leave account as
leave without pay unless his leave is extended
by the authority empowered to grant the leave.
Wilful absence from duty after the expiry of
leave may be treated as misconduct for the
purpose of Clause 12 of Chapter IV of the
Executive Ordinances of AMU and Para 10 of
Chapter IX of the Regulations of the Executive
Council.'
It was held that a show-cause notice and reply
would be necessary. If no show-cause notice had
been given, this Court held that the principles of
natural justice would be held to be complied
with.*‖
20. Yet again in U.P. State Bridge Corpn. Ltd. v. U.P.
Rajya Setu Nigam S. Karamchari Sangh, it was held as
under:
―23. D.K. Yadav is an authority for the
proposition that the principles of natural justice
would have to be read in the standing orders.
That was a case where there was a standing
order similar to CSO L-2.12 except that 8 days'
margin was granted within which the workman
was required to return and satisfactorily explain
the reasons for his absence or inability to return
after the expiry of leave. This view was
reiterated in the later decision of this Court in
Lakshmi Precision Screws Ltd. v. Ram Bahagat
where it was held that the element of natural
justice was an inbuilt requirement of the
standing orders.
24. In this case, the appellant Corporation
had issued two notices calling upon the
workmen represented by the respondent to
return to duty. The workmen did not respond to
either of the notices. As we have noted it was
not pleaded that the advertisement did not
sufficiently comply with the principles of
natural justice. The notice was issued giving an
opportunity to the respondent to show cause
why the presumption should not be drawn
under CSO L-2.12. The respondent did not
show cause. In the circumstances, the
management drew the presumption in terms of
the CSO.‖‖
20. It may be observed that in the present case, sufficient
opportunity was granted by the respondent-PNB to the appellant to
show cause why he should not be removed in accordance with Clause
XVI. The action of the respondent-PNB cannot be held to be unfair
and unreasonable and one which does not meet requirements of
Article 14 of the Constitution of India. The principle of natural justice
has been complied with.
21. In view of the aforesaid reasoning, we do not find any merit in
the present Appeal and we agree with the findings recorded by the
learned single Judge. Appeal is accordingly dismissed. No order as to
costs.
(SANJIV KHANNA)
JUDGE
(DIPAK MISRA)
CHIEF JUSTICE
FEBRUARY 10, 2011.
P/VKR
