Madras High Court
Union Bank Of India vs The Presiding Officer on 15 November, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
2024:MHC:3875
W.A.No.2901 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 10.09.2024
Pronounced on 15.11.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE C.KUMARAPPAN
W.A.No.2901 of 2023
and C.M.P.No.24094 of 2023
Union Bank of India,
Rep. by its Deputy General Manager (Personnel),
Central Office, Union Bank of India,
239, Vidhan Bhavan Marge,
Mumbai – 400 021. ... Appellant
Vs.
1.The Presiding Officer,
Central Government Industrial Tribunal
Cum Labour Court,
Shastri Bhavan, Chennai – 6.
2.M.K.Narayanan ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, praying
to set aside the order dated 09.02.2023 in WP.No.2022 of 2015.
For Appellant : Mr.P.Raghunathan,
for M/s.T.S.Gopalan & Co.
For R1 : Labour Court
For R2 : Mr.Balan Haridas
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Page 1 of 22
W.A.No.2901 of 2023
JUDGMENT
M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
For the sake of convenience, the appellant herein is referred to as
'the Bank', the first respondent as 'the Tribunal' and the second
respondent as 'the employee'.
2. The employee, who joined the services of the Bank in the year
1961, had remained unauthorizedly absent from 21.11.1995 onwards.
Quoting health reasons, the employee had submitted an application for
voluntary retirement on 28.11.1995 under Clause 29 of the Union Bank
of India (Employees') Pension Regulations, 1995 (hereinafter referred to
as 'Pension Regulations'). On 13.09.1996, the Bank claims to have
communicated to the employee that his request for voluntary retirement
cannot be considered and had called upon him to report for work.
Thereafter, the Bank had claimed that the employee had abandoned his
service, since he had not reported for work continuously, which
prompted him to raise an Industrial Dispute in I.D.No.37 of 2013, before
the Central Government Industrial Tribunal cum Labour Court, Chennai.
('the Tribunal'). By an Award dated 12.08.2014, the Tribunal had taken
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into account the voluntary retirement application filed by the employee
dated 28.11.1995 and declared that he is deemed to have retired after
three months of receipt of his application and thereby, directed the Bank
to pay 50% of the retirement benefits due to him, from the date of
retirement, till the date of the Award, within one month, with a default
clause for payment of interest on the same @ 9% p.a. The challenge to
the Award of the Tribunal before the learned Single Judge of this Court in
WP.No.2022 of 2015, was dismissed on 09.02.2023. This order of
dismissal of the Writ Petition is assailed in this Intra Court Appeal.
3. The learned counsel appearing for the Bank submitted that the
employee had abandoned his services from 21.11.1995 and had remained
incommunicado. He had also left his house locked and therefore, even if
the reply of refusal to accept his voluntary retirement application had
been sent to the address where he was not residing, would only be an
empty formality and therefore non-sending of the refusal order of his
voluntary retirement application, will not entitle him for the deemed
approval. He further submitted that the employee was covered only under
the provident fund and had not opted for pension and therefore, he will
not be covered under the Pension Regulations. This apart, the learned
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counsel submitted that there is a delay of 16 years in raising the
Industrial Dispute and therefore, the dispute is hit by delay and laches.
4. Per contra, the learned counsel appearing for the employee
contended that as per the Proviso to Clause 29(2) of the Pension
Regulations, the Bank is obligated to inform the voluntary retirement
applicant about refusal to grant permission for retirement, before the
expiry of three months and in the absence of such intimation, there is a
deemed approval and therefore, the Tribunal had correctly come to the
conclusion in this regard. He further added that the learned Single Judge
had also rightly appreciated the Award of the Tribunal and had dismissed
the Writ Petition and therefore, no interference is required to the said
order also.
5. The scheme of voluntary retirement by the employees of the
Bank is governed under Clause 29 of the Union Bank of India
(Employees') Pension Regulations, 1995. The relevant portions of Clause
29, for the appreciation of the facts of this case, are extracted hereunder:-
“29. Pension on Voluntary Retirement –
1. On or after the 1st day of November 1993, at any
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time after the an employee has completed twenty years
of qualifying service he may, by giving notice of not
less than three months in writing to the appointing
authority, retire from service:
Provided........
Provided .......
Provided........
2. The notice of voluntary retirement given under sub –
Regulation (1) shall require acceptance by the
appointing authority:
Provided that where the appointing authority does not
refuse to grant the permission for retirement before the
expiry of the period specified in the said notice, the
retirement shall become effective from the date of
expiry of the said period.
3.........
4.........
5.........
6.........”
6. It is not in dispute that the employee had completed 20 years of
qualifying service and is not otherwise disqualified. Therefore, he is
eligible to opt for voluntary retirement under Clause 29 of the Pension
Regulations.
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7. On 28.11.1995, the employee had submitted his application for
voluntary retirement under this Clause, which fact is not denied by the
Bank. As per the aforesaid Clause, in case the Bank intends to deny
approval of the voluntary retirement application to any of its employees,
it is obligatory on the part of the Bank, to communicate in writing, such
order of refusal to the concerned employee, within a period of three
months from the date of application, failing which, the applicant is
deemed to have retired from the date of expiry of the period of three
months. The applicant claims that the Bank had not given any written
communication of refusal to accept the voluntary retirement application,
within the said period of three months, which fact is also not in dispute.
8. On the other hand, what is claimed by the Bank is that, since the
employee had left his house and his whereabouts were not known,
sending any written communication to an address where none of his
family members were residing, would only be an empty formality. In this
regard, the learned counsel for the Bank had placed reliance on certain
inter-office communications between the Regional Office and Zonal
Office, where references are found that the employee was not residing in
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his last known address.
9. The stand taken by the learned counsel for the Bank is that non-
communication of the written refusal of the voluntary retirement
application to the employee, would not be fatal, since such a procedure
would only be an empty formality. In support of such a claim, the
learned counsel had placed reliance on the decisions of the Hon'ble
Supreme Court in the cases of 'Canara Bank & others Vs. Debasis Das
& others' reported in '(2003) 4 SCC 557' and 'Canara Bank Vs. V.K.
Awasthy' reported in '(2005) 6 SCC 321'.
10. The Union Bank of India (Employees') Pension Regulations,
1995, was brought into force in exercise of the powers conferred under
Section 19(2)(f) of the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970 (5 of 1970), after consultation with the Reserve
Bank of India and with the previous sanction of the Central Government.
The regulations have statutory force and would be binding equally on
both the Bank, as well as the employees. For an employee to avail the
benefits of Voluntary Retirement Scheme under Clause 29 of the Pension
Regulations, he is mandated to give a notice of not less than 3 months in
writing to the Appointing Authority, expressing his desire to voluntary
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retire from service. The second mandate under Clause 29(2) is that, in
case where the Bank intends to refuse to grant permission, it is obligated
to communicate the same to the employee in writing. Failure to do so
would be deemed as grant of permission. This is the only interpretation
that could be given to Clause 29 of the Pension Regulations.
11. When the requirements and procedures have been clearly spelt
out in Clause 29, there can be no departure from the regulations, which is
in the nature of statute. The legal maxim, 'a verbis legis non est
recedendum' means from the words of law, 'there must be no departure'.
This legal proposition has been reiterated by the Hon'ble Supreme Court
in several of its decisions, including the cases in 'S.P. Gupta Vs. Union
of India' reported in 'AIR 1982 SC 149'; 'P.K. Unni Vs. Nirmala
Industries' reported in 'AIR 1990 SC 933'; and 'CIT Vs. Tara Agencies'
reported in '(2007) 6 SCC 429'.
12. When Clause 29 of the Pension Regulations stipulates certain
requirements and procedures, there cannot be any departure from the
same, except to abide by what is contemplated therein. Lest, it would
lead to mischievous consequences, causing serious prejudice to the
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affected party.
13. In a later decision in the case of 'State of Madhya Pradesh Vs.
Narmada Bachao Andolan & another' reported in '(2011) 7 SCC 639',
the Hon'ble Supreme Court had extensively dealt with the mode of
interpretation of a statute and had observed that the Court has to not only
take a pragmatic view, while interpreting a statutory provision, but must
also consider the practical aspect of it. After placing reliance on several
of its own precedents, touching upon interpretation of statute, it was held
thus:-
..... “84. Any interpretation which eludes or
frustrates the recipient of justice is not to be followed.
Justice means justice between both the parties. Justice
is the virtue, by which the court gives to a man what is
his due. Justice is an act of rendering what is right and
equitable towards one who has suffered a wrong. The
underlying idea is of balance. It means to give to each
his right. Therefore, while tempering the justice with
mercy, the court has to be very conscious that it has to
do justice in exact conformity with the statutory
requirements.
85. Thus, it is evident from the abovereferred
law, that the court has to interpret a provision giving it
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a construction agreeable to reason and justice to all
parties concerned, avoiding injustice, irrationality and
mischievous consequences. The interpretation so made
must not produce unworkable and impracticable
results or cause unnecessary hardship, serious
inconvenience or anomaly. The court also has to keep
in mind the object of the legislation......”
14. The submission of the learned counsel for the Bank that since
the Bank was aware that the employee was not residing in his last known
address, sending a written communication of refusal of his voluntary
retirement application would be an empty formality, is not only
unacceptable, but also irrational. It is not in dispute that no
communication was ever sent to the employee, within the period of 3
months from the date of his voluntary retirement application, as
mandated under Clause 29. Merely because the Bank had knowledge
that the residence of the employee was locked, it will not justify the
conclusion of the Bank authorities that the employee is incommunicado.
15. It is needless to point out that when any person, who keeps his
house door locked and leaves, is always entitled to leave an alternate
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address with a postal authority or can authorize any other neighbour or
other persons to receive mails on his behalf, from the postal/courier
authorities. This alternate method of receiving a written communication
can be ascertained, only when a written communication is sent to the
employee to the last known address and there can be no presumption of
the alternate. It is in this view of the matter, we had remarked on the
submission of the Bank that the employee was in incommunicado, as
irrational.
16. The submission is also unacceptable to us, since the Bank had
failed to perform its obligation, as required under Clause 29 of the
Pension Regulations and having failed to do so, it cannot take advantage
of its own lapse and attempt to justify its inaction. As already observed
by us, when the law requires a thing to be done in a particular manner,
there can be no departure from the same.
17. The learned counsel for the Bank, by placing reliance on
Debasis Das's case (supra), submitted that, since the whereabouts of the
employee were not known, the notice of rejection of the voluntary
retirement application will not improve the situation. Further, in the
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aforesaid case, the Bank employee therein, who was required to give a
written brief to the Inquiry Officer within 10 days, had failed to do so.
So also, he had not sent his submissions on the findings of the Inquiry
Officer's report, within 30 days after the inquiry report. When the case
was dealt by the High Court, it was found that the inquiry was in
violation of the principles of natural justice. The Hon'ble Supreme Court
had, however, taken note of the fact that there was no requirement under
the Canara Bank Regulations for grant of opportunity of post-decisional
hearing and therefore, found fault with the observation of the High Court
that there was violation of the principles of natural justice. The Hon'ble
Supreme Court had also taken into fact that the employee therein had not
pleaded the prejudice caused to him and had thus come to the conclusion
that the High Court had not properly interpreted the Canara Bank
Regulations.
18. We are not confronted with such facts in the present case and
thus, the rulings, as to whether there is violation of principles of natural
justice during the course of inquiry, will be of no avail to the Bank.
19. The learned counsel had also placed reliance on V.K. Awasthy's
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case (supra) for the same proposition. Even in this case, the facts are
almost similar to Debasis Das's case (supra), and the question that was
adjudicated therein was, as to whether principles of natural justice have
been violated and if so, to what extent any prejudice has been caused?
Pursuant to this adjudication, the Hon'ble Supreme Court had observed
that there were no pleadings related to violation of principles of natural
justice, either in the memo of appeal or at the time of personal hearing
before the Appellate Authority and thus, had come to the conclusion that
there was no violation of principles of natural justice.
20. The present case in hand is not a case where the violation of
principles of natural justice is the issue involved. Rather, the violation of
the requirements and the procedures contemplated under Clause 29 of the
Pension Regulations, is the core issue. As discussed by us hereinbefore,
the non-adherence to the procedure would be fatal to the Bank and
consequentially, when the Proviso to Clause 29(2) of the Pension
Regulations is strictly interpreted, the voluntary retirement application
submitted by the employee is deemed to have been accepted by the Bank
and therefore, the Award of the Tribunal, which had also held thus,
cannot be found fault with.
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21. The learned counsel for the Bank also made a faint attempt to
submit that the employee had abandoned his service, since he was
continuously absent and therefore, his voluntary retirement application
does not deserve consideration.
22. We fail to understand, as to how such a conclusion can be
arrived at by the Bank, without following due procedure of law in the
given circumstances. In order to declare that an employee has abandoned
his service, the employer has to first take into account the unauthorized
absence on his part, which by itself would be a misconduct that may
warrant initiation of disciplinary proceedings. It is only when the
unauthorized absence continues for a considerable length of period, can
the employer declare the employee of having abandoned his service.
Even to initiate such an inaction, the procedure for terminating his
service should be in accordance with the service regulation, apart from
following the principles of natural justice.
23. Clause 17 of the Bi-partite Settlement dated 10.04.1989,
between the Bank and the employees, provides for the manner in which
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the Bank can declare voluntary cessation of employment by the
employees. As per the settlement clause, when an employee absents
himself from work for a period of 90 or more consecutive days, the Bank
is required to give a notice to the employee at his last known address,
calling upon him to report for duty within 30 days from the date of
notice. On receipt of the notice, if the employee does not report for duty
or fails to give an explanation, he would be deemed to have abandoned
the service.
24. In the instant case, the Bank claims that the employee had last
reported for work on 21.11.1995 and thereafter, remained unauthorizedly
absent. However, it is admitted by the Bank that on 28.11.1995, the
employee had submitted his application for voluntary retirement. Before
the Tribunal, the Bank had marked several inter-office communications
between the Regional Office and Zonal Office, including the letters dated
21.12.1995, 22.12.1995 and 29.12.1995. The copies of all these inter-
office communications have been produced before the Tribunal, as well
as this Court. A perusal of which, would reveal that in no such
communication, the Bank had taken a stand that the employee had
abandoned his service. On the other hand, these inter-office
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communications touches upon the non-repayment of loans by the
employee, instructions for withholding his salary since he had not
reported for work, after tendering his application for sick leave on
30.11.1995 and advises to the Regional Office to issue a letter, calling
upon him to report for duty and for withholding all his pay and
allowances for his unauthorized period of leave. These were the only
three inter-office communications marked before the Tribunal, within the
period of three months from the date on which the employee had
submitted his application for voluntary retirement, during which period,
he was deemed to be in the service of the Bank.
25. However, the Bank had marked a notice dated 25.03.1996
before the Tribunal (Ex.M6) and the returned undelivered postal cover
(Ex.M7), which is a notice under Clause XVI of the Bi-partite Settlement
dated 10.04.1989, calling upon the employee to report for duty within 30
days or submit his application for his absence. This notice has been
returned as 'unserved' with an endorsement that the 'party left'. In our
view, this notice dated 25.03.1996 itself was a futile exercise on the part
of the Bank, in view of the fact that the employer-employee relationship
between the Bank and the employee, had seized to exist on the expiry of
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three months from 28.11.1995, when the employee had submitted his
application seeking for voluntary retirement under Clause 29 of the
Pension Regulations, which aspect has already been dealt by us in the
preceding portion of this judgment. Hence, the notice dated 25.03.1996
itself is to be rendered as redundant and superfluous. Thus, the exercise
undertaken by the Bank to send a notice under Clause XVI of the Bi-
partite Settlement for an abandonment of his service, was a futile
exercise, since the Bank would have no authority to send such a notice to
an employee, who has already retired from service.
26. The plea that the employee had abandoned his service appears
to have been taken only in the counter-statement filed by the Bank before
the Tribunal in I.D.No.37 of 2013 and not anytime prior to that. This
plea, which is an after thought, cannot in any way justify the claim of the
Bank, which fails to adhere to the well settled principles of service and
labour jurisprudence while declaring an employee of having abandoned
service and thereby, terminating his services. The Bank had failed to
produce even a single document before the Tribunal that they have atleast
taken a decision to terminate his service on the ground that he has
abandoned his service. Having failed to do so, it would not now be open
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to canvas such a plea, merely on the strength of the averment made in the
counter-statement in this regard.
27. The learned counsel for the Bank also claimed that since the
employee was covered under the Provident Fund Scheme and had not
opted for pension, he would not be eligible for coverage under the
Pension Regulations. Apart from making such a vague claim, no
materials have been produced before the Tribunal or this Court to
demonstrate the inapplicability of Clause 29 of the Pension Regulations
to the employees who are covered under the Provident Fund Scheme.
Even Clause 29 does not provide for exceptions for ineligibility to the
employees covered under the Provident Fund Scheme. In the absence of
the same, we are unable to appreciate this stand of the Bank.
28. The learned counsel for the Bank also made a faint attempt to
discredit the employee's case by claiming that the Industrial Dispute
raised by him in the year 2013, is hit by delay and laches, for which
proposition, he placed reliance on the decisions of the Hon'ble Supreme
Court in the cases of 'Assistant Executive Engineer, Karnataka Vs.
Shivalinga' reported in '(2002) 10 SCC 167'; 'Assistant Engineer, CAD,
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Kota Vs. Dhan Kunwar' reported in '(2006) 5 SCC 481'. By referring to
these decisions and a couple of similar decisions of the Hon'ble Supreme
Court, the learned counsel for the Bank submitted that even though the
Industrial Disputes Act, 1947, does not provide for a limitation, the
Hon'ble Supreme Court had frowned upon an inordinate delay on the part
of the workman in raising a dispute, in cases touching upon the
conditions of service of the workman.
29. There is no quarrel on the legal proposition propounded by the
Hon'ble Supreme Court, touching upon delay and laches. But what
would be pertinent for consideration of such a plea, is to ascertain the
period of delay commencing from the cause of action.
30. As discussed earlier, the employee is deemed to have retired
from the services, on completion of three months from the date of his
voluntary retirement application. Thereafter, it was only the Bank which
was at fault in failing to take steps to relieve him under the voluntary
retirement scheme, by disbursing his retirement benefits. Neither the
decision of refusal of his voluntary retirement application, nor the claim
that the employee had abandoned his services, were discharged by the
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Bank, in accordance with the Bank's Regulations or in a manner known
to law. It is only after several years, was the employee made aware of the
illegal termination of his services, when his cause of action arose and
thereafter, he had raised the Industrial Dispute, within a reasonable time.
Hence, it cannot be said that the Dispute was raised after an inordinate
delay.
31. The Tribunal had, on the basis of the materials available on
record and on appreciation of such evidences, had rightly declared that
the employee is deemed to have retired after 3 months from the date of
receipt of the application for voluntary retirement and had passed
consequential orders in its Award. The learned Single Judge had also
found that there was no perversity in the findings of the Award of the
Tribunal and had confirmed the same.
32. In the light of our observations and findings, we do not find
any reason to interfere with either the order of the learned Single Judge
dated 09.02.2023 passed in W.P.No.2022 of 2015, or the Award of the
Tribunal dated 12.08.2014 passed in I.D.No.37 of 2013.
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33. Accordingly, the Writ Appeal stands dismissed. No costs.
Connected miscellaneous petition is closed.
[M.S.R., J] [C.K., J]
15.11.2024
Index: Yes
Neutral Citation: Yes
Speaking order
Sni
To
The Presiding Officer,
Central Government Industrial Tribunal
Cum Labour Court,
Shastri Bhavan, Chennai – 6.
https://www.mhc.tn.gov.in/judis
M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
Sni
Pre-delivery judgment made in
15.11.2024
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