Delhi High Court
Sardar Paramjit Singh Girgla vs Punjab & Sind Bank on 4 August, 2022
$~2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 12.07.2022
Pronounced on: 04 .08.2022
+ W.P.(C) 7897/2009
SARDAR PARAMJIT SINGH GIRGLA .... Petitioner
Through Ms. Anjana Gosain, Ms.Ritika
Khanagwal and Ms. Shalini Nair,
Advocates.
versus
PUNJAB & SIND BANK ...Respondent
Through: Mr. Rajat Arora and Mr. Niraj
Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGMENT
GAURANG KANTH, J.
1. The present petition has been filed under Article 226 of the
Constitution of India for setting aside the award dated 23.07.2008 passed
by Presiding Officer, Central Government Industrial Tribunal-cum-
Labour Court-II, whereby the learned Presiding Officer has upheld the
decision of the Deputy General Manager, Punjab and Sind Bank, Zonal
Office for not allowing Mr. Pramajit Singh Girgla, Ex. Clerk-cum-
Cashier, Punjab and Sind Bank, Hemkunt Colony Branch to join his
duties on 07.08.1996 in response to the bank's first notice dated
06.07.1996. The learned Presiding Officer, Central Government
Industrial Tribunal-cum-Labour Court-II further held that in terms of
Clause 17 of the Bipartite Settlement (BPS) dated 10.04.1989, the action
of the Respondent Bank was proper and justified in voluntarily retiring
the Petitioner from the services of the Bank with effect from 26.11.1996.
2. Before taking note of the submissions made by the respective
counsels for the parties, the facts arising out of the records leading to the
present petition need to be mentioned and analyzed. In the present case,
the Petitioner was appointed as apprentice at Punjab & Sind Bank, Janak
Puri Branch, New Delhi vide letter No. Staff CA/1917 dated 23.05.1978
issued by Manager Personnel, Punjab and Sind Bank Ltd. (Regd Office,
Hall Bazar, Amritsar). Later, the Petitioner was transferred to Hemkunt
Colony, New Delhi. In view of the Petitioner's unauthorized absence
from duty, a notice dated 06.07.1996 was issued to him by the Bank
directing him to report on duty within 30 days of the receipt of the said
notice or provide an explanation of his absence otherwise he will be
deemed to have been voluntarily retired from the services of the
Respondent Bank on the expiry of the period of the said notice. The said
notice was issued to the Petitioner on 06.07.1996 but was posted on
09.07.1996. Therefore, it is apparent that the said notice would have
been received by the Petitioner on or after 09.07.1996. On 07.08.1996,
i.e. within the period of 30 days, the Petitioner approached the
Respondent Bank with an application seeking to join back his duties but
he was not permitted to do so.
3. Thereafter, the Petitioner, vide letter dated 09.08.1996, again
sought permission to join his duties and submitted that he could not
report on duty earlier due to viral fever and back pain and was under
treatment till 05.08.1996. The Respondent Bank, vide letter dated
14.08.1996, replied to the Petitioner to submit proof of his illness from
17.06.1994 to 05.08.1996 for considering his request for allowing him to
join his duties. The Petitioner sent a legal notice dated 27.08.1996 for
withdrawing the notice dated 06.07.1996 issued by the Respondent Bank
and to reinstate the Petitioner back in service from the day of his
termination with full service benefits. On 12.09.1996, the Petitioner filed
a Suit No.544/1996 before the Civil Court and the same was dismissed by
learned trial court vide its judgment dated 28.01.1998 on the ground of
not being maintainable and premature. Another notice was issued to the
Petitioner by the Respondent Bank on 07.10.1996 directing him to
explain his unauthorized absence within 30 days of receipt of the notice,
otherwise, he will be deemed to have been voluntarily retired from the
services of the Bank on the expiry of the period of the said notice. In the
absence of any response from the Petitioner to the Notice dated
07.10.1996 issued by the Respondent Bank, the Petitioner stood
voluntarily retired with effect from 26.11.1996. The Petitioner has raised
an Industrial Dispute thereby challenging his voluntarily retirement order.
4. The learned Industrial Tribunal at the first instance passed an
award dated 01.05.2008 observing that the action of the Deputy General
Manager, Punjab and Sind Bank, Zonal Office, C-14/16, Connaught
Place, New Delhi for not allowing Mr. Pramajit Singh Girgla, Ex. Clerk-
cum-Cashier, Punjab and Sind Bank, Hemkunt Colony Branch to join his
duty when he reported on duty on 07.08.1996, treating him as voluntarily
retired from the services w.e.f. 26.11.1996 under Clause 17 of the BPS
and detaining his salary dues, was neither proper nor justified. The
learned Industrial Tribunal had accordingly directed that the management
should reinstate the Petitioner with continuity in service but without back
wages within two months from the date of the publication of the said
award.
5. Subsequently, the respondent management filed an application
before the learned Tribunal for setting aside the award dated 01.05.2008
claiming that they have not been given an opportunity to adduce
additional evidence. The learned Tribunal set aside the said original
award dated 01.05.2008 and permitted the respondent management to
adduce additional evidence.
6. Thereafter, additional evidence was adduced by the management
and after conclusion of the trial, the learned Industrial Tribunal passed the
impugned award dated 23.07.2008, which is under challenge by way of
the present writ petition.
7. The main thrust of the impugned award passed by the Industrial
Tribunal is Clause 17 of the BPS. At the outset, it is necessary to review
Clause 17 of the BPS which reads as under:-
"When an employee absent himself from work for a period of
90 or more consecutive days, without submitting any
application for leave or for 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 grounds for coming to the conclusion that the
employee has no intention of not joining duties and furnishing
necessary evidence, wherever available. "Unless the employee
reports for duty within 30 days of the notice or gives an
explanation for his absence within the said period of 30 days
satisfying the management that he has not taken up another
employment or vocation and that he has no intention of not
joining duties, the employee will be deemed to have
voluntarily retired from the Bank's services 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.
a. When an employee goes abroad.
b. If an employee again absents himself within a period
of 30 days without submitting any application after
reporting for duty in response to the notice given
after 90 days or 150 days absence, as the case may
be, the second notice shall be given after 30 days of
such absence giving him 30 days time to report. If he
reports in response to the second notice, but absents
himself a third time from duty within a period of 30
days without application, his name shall be struck off
from the establishment after 30 days of such absence
under intimation to him by registered post deeming
that he has voluntarily vacated his appointment."
8. A plain reading of Clause 17 of the BPS suggests that it has
different stages, for taking action against an employee for unauthorized
absence. Different stages of Clause 17 are:
"Stage-I - When an employee absent himself from work for a
period of 90 or more consecutive days, Management shall 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.
(FIRST NOTICE)
Stage-II - (a) If an employee does not join within the stipulated
30 days on receipt of the notice he shall be deemed to have
voluntarily retired.
(b) If the employee report for duty within 30 days of the
notice he shall be permitted to report to duty prejudice to the
Bank's right to take any action under the law or rules of service.
Stage-III- If an employee after joining his duties again
remained absent for 30 days after reporting for duty in terms of
FIRST NOTICE, a SECOND NOTICE to be given to the
employee within 30 days of his absence, with 30 days reporting
time.
Stage-IV- If the employee report for duty within 30 days but
again absents himself within a period 30 days. His name to be
struck off."
9. The learned Industrial Tribunal while discussing Clause 17 of the
BPS has observed as under:-
"As per the provisions of Clause 17 BPS in case after 90 days
absence a 30 days notice is sent the workman should report to
join duty or give satisfactory explanation. In the instant case the
workman approached within 30 days to resume his duties but
he was not permitted to join. He made representation on
09.08.1996 to GM regarding this fact. The management did not
permit him to join as he has not gone there to join with
application and medical certificate. It is not required as per the
provisions of the 17 BPS that the workman should report to
duty along with explanation. He was directed to report for duty
or give satisfactory explanation in the letter dated 06.07.1996.
He did approach the bank for joining on 07.08.1996 but
malafidely the workman was refused to resume his work. The
workman has not been retired voluntarily on this notice.
From perusal of the above discussion it becomes quite obvious
that the workman went to join duty on 09.08.1996. He was
refused duty so notice dated 06.07.1996 is not effective.
This Tribunal held in the previous award that 90 days period
for second notice is also necessary. From perusal of 17 (C) BPS
it becomes quite obvious that after service of the first notice for
absence of 90 days, the second notice may be sent after 30 days
of absence.
The management sent another notice on 07.10.1996 after a gap
of 60 days. The workman received this notice but he has stated
in his cross-examination that he did not go to join duty and he
did not send reply to this notice. After 30 days of service of
notice the management rightly treated the workman voluntarily
retired. For second notice the mandatory period is 30 days and
not 90 days as has been held by this court in the previous
award."
Submission on behalf of the Petitioner
10. Ms. Anjana Gosain, learned counsel for the Petitioner submitted
that the learned Industrial Tribunal erred in passing the impugned award
dated 23.07.2008 by not observing that there was no evidence on record
to prove that the Petitioner remained unauthorizedly absent.
11. Counsel for the Petitioner further submitted that the first notice
dated 06.07.1996 is unlawful and illegal since the Petitioner had neither
been issued any show cause notice nor any enquiry was conducted
against him. Learned counsel further contended that no opportunity was
provided to the Petitioner to present his case, as such his removal from
service is violative of Article 311 of the Constitution of India and against
the principles of natural justice.
12. Learned counsel for the Petitioner further contended that the notice
dated 06.07.1996 was dispatched on 09.07.1996 and received by the
Petitioner on the very same date. Pursuant to notice dated 06.07.1996, the
Petitioner reported for duty on 07.08.1996 but was not allowed to join.
Thereafter, the Petitioner reported for duty before the Zonal Office on
09.08.1996 and submitted a letter whereby he has given reasons for his
absence. Learned counsel emphatically urged that the Petitioner has
complied with all the directions contained in the notice dated 06.07.1996
by reporting for duty within 30 days of the notice and also by giving
reasons for his absence and his willingness to join. Further, it is
contended that the Petitioner has fulfilled the norms, rules and conditions
of the notice dated 06.07.1996, which the Respondent Bank claims to
have sent in terms of Clause 17 of the BPS. It is further contended that
the said order of voluntary retirement is misconceived, and the
Respondent/ Management has arbitrarily, unconstitutionally and in a
malafide manner has debarred the Petitioner from getting his legal right
of livelihood. Learned counsel further contended that there was no
occasion for the Respondent/Management to issue the second notice and
subsequently terminate the services of the Petitioner.
13. Learned counsel for the Petitioner further contended that the
learned Industrial Tribunal erred in holding that the Petitioner failed to
report for duty or submit any application pursuant to the second notice
dated 07.10.1996, as the said notice never gave any directions in terms of
BPS to the Petitioner to report for duty and instead, the said notice was
issued to the Petitioner directing him to explain his unauthorized absence.
14. Learned counsel further contended that the Respondent neither
produced the attendance Register nor any other document establishing
that the Petitioner was unauthorizedly absent.
15. Learned counsel for the Petitioner further contended that the
Respondent/ Management issued another notice dated 14.08.1996 but the
same was never served on the Petitioner as admitted by the witness
Sh.S.K. Behl on 12.07.2007.
16. Learned counsel for the Petitioner concluded her argument by
highlighting the fact that the learned Industrial Tribunal had passed an
ex-parte Award dated 01.05.2008 in favour of the Petitioner, however,
the learned Industrial Tribunal made a blatant error while recalling the
Award dated 01.05.2008 and granting permission to the management for
adducing additional evidence without taking into account that the
issuance of second notice was illegal. Learned counsel for the Petitioner
further pointed out that till date salary dues of the Petitioner have not
been cleared by the Respondent/ Management.
Submission on behalf of the Respondent
17. Per contra, learned counsel for the Respondent contended that the
Petitioner is bound by the service conditions as applicable to all the
employees of the nationalized banks. The provisions of the BPS are valid
and binding on the employees as well as the management. It is pointed
out that the service conditions are settled at the national level and all the
nationalized banks and their unions are a party to it.
18. Learned counsel further contended that the present case is of
voluntary cessation of service by the Petitioner and as such there is no
requirement of conducting an enquiry. Learned counsel for the
Respondent very strenuously urged that it is necessary for this Court to
bear in mind the conduct of the Petitioner before evaluating the terms of
the BPS.
19. It was argued on behalf of the Respondent that the Petitioner was a
habitual absentee. It was further pointed out that before issuance of the
first notice dated 06.07.1996, the Petitioner vide communication dated
24.07.1995 was called upon to explain his conduct of continuously
absenting from the Office. Thereafter, another notice dated 24.04.1996
was issued by Deputy General Manager, Zonal Office, Punjab and Sind
Bank upon the Petitioner with a direction to report for duty within 30
days of the receipt of the said notice. In view of the fact that the
Petitioner did not report for duty, the first notice dated 06.07.1996 in
terms of Clause 17 of the BPS was issued to the Petitioner. It is further
submitted that after issuance of the first notice, two more notices dated
14.08.1996 and 17.09.1996 were also issued to the Petitioner.
20. Learned counsel for the Respondent further contended that though
it was admitted in the evidence that the Petitioner reported for duty
pursuant to the first notice and was not allowed to join but it was never
the intention of the Petitioner to join his services as he was irregular in
performing his duties diligently w.e.f. 17.06.1994. Thus, reporting for
duty on 07.08.1996 is nothing but to circumvent the provision contained
in Clause 17 of the BPS. He further submitted that even though it is
assumed that the Petitioner reported for duty on 07.08.1996 but it would
not condone the past absence on the part of the Petitioner.
21. Learned counsel for the Respondent further contended that the
Respondent/ Management has taken action against the Petitioner strictly
in accordance with Clause 17 of the BPS and the learned Industrial
Tribunal has correctly passed the impugned award sustaining the action
of the Management treating the Petitioner to have voluntarily retired from
services w.e.f. 26.11.1996.
Legal Analysis based on facts of the present case
22. I have heard learned counsel for the parties and have gone through
the entire record. Both the parties, during the trial, have produced
witnesses in support of their case. In order to ascertain the fact whether
the Petitioner has been absenting himself unauthorizedly, it is relevant to
look through the evidence produced by the parties. Mr. H. S. Bakshi,
Manager, Punjab and Sind Bank, Nehru Place had tendered his evidence
by way of an affidavit, relevant portion of which is recapitulated as
under:-
"1. The workman was irregular of his attendance with effect
from l June, 1994. He attended for only 56 days since June,
1994 till 26.11.1996. A notice dated 6.7.1996 under Clause 17
of the Bi-partite Settlement was served upon him calling upon
him to join duties within 30 days of notice. He failed to do so.
He reported on 7.8.1996 after the expiry of the notice. He
failed to do so. He reported on 7.8.1996 after the expiry of the
notice period stating that he was down with viral fever and
back pain and under treatment till 5.8.1996. As per provisions
of Bi-partite Settlement governing his service conditions, he
was eligible for sick leave subject to production of medical
certificate acceptable to the bank (para IX (4) of the Bi-partite
Settlement dated 17.4.1984). He did not give any medical
proof, as envisaged. Still, vide letter dated 14.8.1996, he was
called upon to give the sufficient proof of his being under
medical treatment so as to consider his request even after the
expiry of notice, to which he did not respond. In view of his
recalcitrant attitude towards correspondence of the
management, after waiting for a further period of two months,
vide notice dated 7.10.1996 under Clause 17(c), he was again
given 30 days time to report for duty or satisfy the management
that he has no intention of not joining duties. He neither
reported for duties within 30 days of notice, nor submitted any
reason / medical certificate nor showed any intent of joining
duties but continued to be absent without any reason /
information / notice. On his failure to report for duties or
submitting any reason-within 30 as he was deemed to have
been voluntarily retired w.e.f. 26.11.1996."
(emphasis supplied)
23. During cross examination, Mr. H. S. Bakshi, Manager, Punjab
and Sind Bank, Nehru Place deposed as under:-
"I work in PSB Zonal Office, Nehru Place, New Delhi. For last
38 years I have been working in the PSB, Nehru Place, New
Delhi. Workman has never worked under me or along with me.
I have been authorized by the management to give my statement
in this case but I have not filed my authorization letter. I have
not brought the attendance register. I have not brought the
attendance register today but I can produce the attendance
register. Objected by the management Advocate.
I do not remember as to when the workman was recruited in the
employment of the bank. The notice dated 06.07.1996 under
Clause 17 of BPS was sent on 9.7.1996 and the Workman
reported on 7.8.1996. It is wrong to suggest that the workman
gave a medical certificate. It is correct that Sh. Bahal was
examined regarding the facts of the present case. It is correct
that the workman has raised the case in Civil Court in the
month of September, 1996. I do not remember second notice
was issued during the pendency of the Civil Case. Second notice
was issued on 7.10.1996. No departmental enquiry was
conducted against the workman. I did not detain his 100%
salary with the period from 1994 to 1996. His salary was put in
sundary account. I do not remember how much salary he was
drawing lastly. I do not remember how salary was credited to
his loan account. I do not remember the date when the
workman took the scooter plan. I do not remember who paid the
scooter loan. He was not given any written instruction to collect
the salary. I do not remember that the workman gave a medical
certificate. I do not remember how much medical leave was
balance in the account of the workman. I have not brought
the medical leave register as I was summoned to do so"
(emphasis supplied)
24. Mr. S. K. Behl, Senior Manager, Punjab and Sind Bank entered the
witness box as MW-1 and during his cross examination, he deposed as
under :-
"It is correct that Ex. MWl/1 (Ex. D-1) is not attendance
register. It is wrong to suggest that Ex. MWl/1 is not prepared
on the basis of the attendance register. It is correct that
attendance register is not filed. The attendance register is 7
year old. I cannot say if it is available in the office or not. The
letter dated 6th July and 7th July might have been posted latest
by 9th July. The 6th July half day being second Saturday and 7 th
July were holiday being Saturday and Sunday. The letter dated
6th of July Ex. MWl/7 is in accordance with clause 17 of
Bipartite Settlement. It is correct that the workman presented
himself on 7.8.96 to report. It is incorrect that the workman
reported during the notice period. The notice period expired
after 30 days from July 6, the date of issue of the letter. It is
incorrect to suggest that I am deposing falsely. It is correct that
the management has served notice dated 7.10.96. I cannot say
when the notice was received by the respondent. However, it
might have been sent on 3rd day of the date of the letter. The
workman told that he could not join within the notice period as
he was ill when he presented on 7.8.96 to report but he did not
produce any medical certificate. Therefore he was again
reminded to submit medical certificate. It is incorrect to
suggest that the workman reported according to the letter
dated 6th July, 97 Vol. that he reported after the expiry of the
time mentioned in the letter. It is incorrect to suggest that the
workman was given notice dated 7.10.96 again to correct the
mistake on the part of the management. It is correct that the
workman has filed a civil suit. Vol. that the said suit was
dismissed. It is incorrect to suggest that the management has
violated the provisions of Bipartite Settlement by not allowing
the workman to report on 7.8.96. The letter Ex. MWl/8 has been
written by the workman. It is incorrect to suggest that the
workman has explained his absence in letter dated 9.8.96
stating that he was down with fever. Management has written
letter dated 14.8.96 to the workman to produce proof of his
absence. It is incorrect to suggest that the letter dated 14.8.96
was received by the workman. Vol. the said letter was
despatched to the workman. It is correct that the letter dated
14.8.96 was delivered back as unclaimed. It is correct that the
letter Ex. MWl/10 was sent after receipt of notice dated 27.8.96.
It is incorrect to suggest that letter dated 6.7.96 was not
complied with by the management. No enquiry was required to
be conducted to invoke clause 17 of Bipartite Settlement. It is
incorrect to suggest that the management has adopted unfair
labour practice. I am deposing on the basis of the record. I do
not have any personal knowledge. It is incorrect to suggest that
the salary has been incorrectly deducted by the management,
(objected to). I do not remember exactly the amount of salary
paid to the workman. It is incorrect to suggest that the workman
never remained absent. It is correct to suggest that the
workman is deemed to have retired from service. It is incorrect
to suggest that I have made false averments in my affidavit"
(emphasis supplied)
25. From the conjoint reading of the aforementioned testimonies, it can
be deciphered that the first notice dated 06.07.1996 was dispatched and
received on 09.07.1996 pursuant to which the Petitioner reported for duty
on 07.08.1996 and submitted an application stating the reason for his
absence. Both Mr. H. S. Bakshi, Manager, Punjab and Sind Bank, Nehru
Place and Mr. S. K. Behl, Senior Manager, Punjab and Sind Bank,
admitted that the Petitioner reported for duty on 07.08.1996, however, it
was stated that he was not allowed to join his duties as the Petitioner
reported for duties after expiry of stipulated period of 30 days. It has also
emerged from the testimonies of abovementioned witnesses that since no
medical proof was attached with the application dated 07.08.1996, he was
once again called upon vide letter dated 14.08.1996 to give sufficient
proof of him being under medical treatment. However, admittedly, the
letter dated 14.08.1996 was never served on the Petitioner and was
received back unclaimed.
26. The evidence further reflects that no attendance register was
produced by the Management/ Respondent. The details showing the
period of days attended by the Petitioner from 17.06.1994 to 26.11.1996
have been produced by the Respondent/ Management vide Ex-MW1/1. It
is also an admitted position that no departmental enquiry was held against
the Petitioner for his unauthorized absence from duty and the action of
deemed voluntarily retirement w.e.f. 26.11.1996 has been taken strictly in
accordance with Clause 17 of BPS.
27. At this stage, it is relevant to reproduce attendance sheet produced
by the Respondent/Management which reads as under:-
"Month Dates No. of
days
June'94 17/6, 18/6, 19/6, 22/6, 24/6 5 days
July'94 16/7, 17/7, 18/7, 19/7, 12
20/7,21/7/22/7 days
23/7, 24/7, 25/7, 30/7, 31/7
Aug.'94 1/8, 2/8, 3/8, 5/8, 7/8, 8/8, 17
14/8, 15/8, 16/8, 17/8, days
18/8, 24/8, 25/8, 28/8, 29/8
30/8,31/8
Sept.'94 17/9,19/9,20/9,21/9 4 days
Oct.'94 3/x, 5/x, 6/x, 19/x, 13/x, 9 days
15/x, 17/x
30/x, 31/x
Nov.'94 4/11,6/11 2 days
Dec.'94 9/12,26/12,27/12,28/12 4 days
Jan/'95 1/1,9/1 2 days
Feb.'95 17/2 1 day
56 day
(Fifty
six
days)"
28. In terms of the abovementioned attendance chart, the Respondent/
Management has claimed before the learned Industrial Tribunal that the
Petitioner has attended the office for only 56 days during the period from
17.06.1994 to 26.11.1996. However, on a plain reading of the attendance
chart which is, Ex. MW1/1, it transpires that the days which are national/
public holiday(s) are also included in the attendance chart, creating doubt
on the authenticity and veracity of the said exhibited document.
Moreover, the Respondent/Management failed to produce the attendance
register or the medical leave register before the Ld. Industrial Tribunal.
29. Admittedly, the first notice dated 06.07.1996 was dispatched on
09.07.1996 and the Petitioner reported for duty on 07.08.1996. As per
the BPS, the Petitioner was bound to report for duty within 30 days of the
receipt of the notice. As such the period of the first notice is deemed to be
reckoned from the date of receipt i.e., 09.07.1996. Taking into account
09.07.1996 as the date of receipt of the first notice, 30 days period to
report for duty would come to an end on 08.08.1996 i.e., one day after the
Petitioner reported for duty i.e., on 07.08.1996. As such it can be safely
inferred that the Petitioner, pursuant to the first notice dated 06.07.1996
which was dispatched and received on 09.07.1996, reported for duty on
07.08.1996, i.e., within the stipulated period of 30 days and has adhered
to the condition of reporting for duty within the specified period.
30. The High Court of Madras in the case of A. Muthu v. Indian
Overseas Bank & Ors. reported in 1994 SCC Online Mad 72 while
dealing with the issue with regard to Clause 17 of the Bipartite Settlement
determining the date of reckoning period of the first notice, has held
that:-
"11. The above extract of C1ause 17-A clearly shows that a
notice has to be served on the Petitioner at his last known
address calling upon him to report for duty within 30 days of
the date of notice and if the employee reports for duty within 30
days of the notice or gives an explanation for his absence within
the said period of 30 days satisfying the Management that he
has not taken up another employment or avocation and that he
has no intention of not joining duties, the employee will be
deemed to have voluntarily retired from bank's service on the
expiry of the said notice. In my view, the date of notice has to
be read as the date of receipt of the notice, otherwise, C1ause
XVII-A will be liable to be struck down as violative of Article
14 of the Constitution. Applying the principles in the rulings
to validate the clause in the agreement and if the clause is
read as within 30 days from the date of the receipt of notice,
the Petitioner cannot have any objection.....
14. In my view, this is a case, where the term, 'date of the
notice' as extracted above, can be read as from the date of
receipt of notice to save the clause from being struck down as
it is violation of Article 14 of the Constitution of India. As I
take the view that the Petitioner has reported for work within
30 days from the date of receipt of the notice it is open to the
Respondent-bank to consider his explanation and arrive at a
conclusion whether the same is satisfactory or not."
31. As discussed above, it is emphatically clear that Clause 17 of the
BPS is a continuous action by the Management, having different stages,
for taking an action against an employee for unauthorized absence.
When an employee abstains from his work for a period of more than 90
days, first notice is to be issued to such employee with a direction to
report for duty within 30 days of the receipt of the notice (Stage-I).
Pursuant thereto if an employee does not join his duties within the
stipulated period of time he shall be deemed to have voluntarily retired
unless he reports on duty without prejudice to the right of the
Management to take action against the said employee in terms of law or
rules of service (Stage-II).
32. The action in terms of BPS automatically comes to an end, if the
delinquent employee report for duty within the stipulated period of 30
days from the date of receipt the of first notice, which in the present case,
commences from 09.07.1996 and comes to an end on 08.08.1996 and the
Petitioner reported on duty on 07.08.1996 i.e., within the stipulated
period of 30 days. The occasion to issue the second notice will arise only
if an employee, after reporting for duty in response to the first notice,
again absents himself within a period of 30 days without submitting any
application, which is not the case in the present matter.
33. It has been clearly mentioned in the BPS that despite reporting for
duty within the stipulated period provided in the first notice, the
Management is well within its rights to take any action against the
employee in accordance with law or rules of service, if the Management
is not satisfied with the justification/ explanation rendered by the
employee after reporting for duty. In the present case, the action of
deemed voluntary retirement of the Petitioner has been taken by the
Management/ Respondent in terms of BPS after issuance of the second
notice. In my opinion, the stage of issuance of the second notice does not
arise as the Petitioner has joined his duties within the time period of 30
days as stipulated under the first notice and action, if any, so warranted,
could have been taken pursuant to the joining of the Petitioner w.e.f.
07.08.1996 in accordance with law or rules of service. The action of
Respondent/Management in not allowing the Petitioner to join his duties
despite reporting within the prescribed period of 30 days from the date of
issuance of the first notice is per se illegal, arbitrary and against the
principles of natural justice. The learned Trial Court erred in holding that
the deemed voluntarily retirement of the Petitioner w.e.f. 26.11.1996
without considering the fact that the Petitioner joined his duties within
the prescribed time stipulated in terms of the first notice and therefore,
the second notice could not have been issued in continuation of the first
notice in terms of Clause 17 of the BPS.
34. As rightly observed by the Constitution Bench of the Hon'ble
Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor
Congress and Ors. reported as 1991 Supp (1) SCC 600 that right to
livelihood cannot hang on to the whims and fancies of individuals in
authority. An employment is not a bounty by the authorities nor can its
survival be at their mercy. Income is the foundation of many fundamental
rights and when work is the sole source of income, the right to work
becomes as much fundamental.
35. The High Court of Madras in The Chief Manager, The Lakshmi
Vilas Bank Ltd. v. The Presiding Officer, The Central Industrial
Tribunal reported as 2012 SCC Online Mad 3922; while dealing with
Clause 17 of the bipartite settlement, held that:-
"42. It is the case of the 2nd respondent/Workmen that on
24.02.1994, he had reported for duty, but he was not permitted to
join duty. In view of the discussion, the contention of the
petitioner/bank that the second respondent/workman did not report
for duty as per Clause 17 of the bipartite settlement dated
10.04.1989 cannot be countenanced. All that is required, is that
an explanation should be submitted within 30 days either by
reporting in person or submitting an explanation. If the reply is
satisfactory, the workman shall be permitted to report for duty,
without prejudice to the bank's right, to take any action under
law and rules of service. If the explanation is not satisfactory, the
Management can order for a regular domestic enquiry."
36. In view of the aforementioned discussion and settled position of
law applied to the facts of the present case, the Award dated 23.07.2008
passed by the Industrial Tribunal and the deemed voluntary retirement of
the petitioner is set aside. The Respondent/ Management is directed to
reinstate the Petitioner forthwith without back wages. The Petitioner is
deemed to be in continuous service on notional basis.
37. Accordingly, the Petition stands allowed. No order as to costs.
GAURANG KANTH, J.
AUGUST 04, 2022
