Telangana High Court

The Regional Manager, C.B.I., vs Industrial Tribunal I 7 Others on 20 December, 2021

Bench: Satish Chandra Sharma, N.Tukaramji

 THE HON'BLE CHIEF JUSTICE SATISH CHANDRA SHARMA

                              AND

     THE HON'BLE SRI JUSTICE N. TUKARAMJI


            WRIT APPEAL No.841 of 2008


JUDGMENT:    (Per Hon'ble the Chief Justice Satish Chandra Sharma)



     The present Writ Appeal is arising out of the order

dt.28.03.2008 passed in Writ Petition No.13303 of 1999

by the learned Single Judge.

     The facts of the case reveal that one Sri S. Yadagiri,

an employee serving Central Bank of India, was absent

from duty for 117 days w.e.f. 17.07.1989 to 24.10.1989,

and his services were put to an end w.e.f. 07.02.1991 on

the ground of 'voluntary abandonment of Bank's service'.

     As Sri S. Yadagiri took shelter of the Industrial

Disputes Tribunal by submitting a petition under Section

2-A(2) of the Industrial Disputes Act, 1947 before it and

the said Tribunal has allowed the petition directing

reinstatement with 50% back wages, the respondent-

Bank came up before this Court by filing a Writ Petition

and the learned Single Judge had upheld the award

passed by the Industrial Tribunal.

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Unfortunately, the employee-in-question Sri

S. Yadagiri expired during pendency of the Writ Petition,

and the widow has been brought on record along with

other children.

The disputed facts of the case reveal that for an

absence of 117 days, the order of termination was passed

on 07.02.1991 by the employer keeping in view the 5th

Bipartite Settlement of Shastri Award.

Clause 17 of the Shastri Award which is

indisputably applicable to the Bank is reproduced as

under :

"17. Voluntary Cessation of Employment by the Employees :

The earlier provision relating to the voluntary cessation of employment by the employee in the earlier settlements shall stand substituted by the following:

(a) When an employee absents 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 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."

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The stand of respondent-Bank is that appellant's

services were discontinued keeping in view the 5th

Bipartite Settlement dt.29.05.1989 reached by the

Management and the Unions, and the Tribunal has erred

in law and facts and granted relief to the deceased /

employee.

The learned Counsel for the Bank placed reliance

upon the judgment delivered in the case of Chief

Regional Manager, United India Insurance Company

Limited vs. Siraj Uddin Khan1. His contention in the

said case is that as the employee therein was absent from

duty he is not entitled for back wages.

This Court is dealing with a case of an employee

whose services were terminated by an order

dt.07.02.1991 and award was passed in his favour

directing reinstatement with 50% back wages on

08.12.1998. After the order was delivered, he was not

reinstated into service.

The employee-in-question, even though he won the

battle with the employer from the Tribunal in respect of

his termination and was not reinstated, ultimately lost

battle with life during pendency of the Writ Petition and

(2019) 7 SCC 564 ::4::

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there is now only the widow who is going to be benefitted

by the orders of this Court.

This Court has carefully gone through the Award

passed by the Tribunal, and the Tribunal has taken into

account the 5th Bipartite Settlement. The Bipartite

Settlement itself provides for service of notice to an

employee before passing a final order in respect of

voluntary abandonment, and the award passed by the

Tribunal which is based on evidence adduced by the

parties reveal that a Notice / Ex.M.1 was issued

informing his absence and Notice / Ex.M.2 was also

issued to report for duty. The addresses on which the

notices were sent were not the addresses where the

employee was residing, and in fact, the employee during

his lifetime took a housing loan from the Bank to

construct a house and he was residing in the house

which he constructed with permission of the Bank that

too after availing a loan from the same Bank. The notices

were not served to the employee on the aforesaid address.

Undisputably, no paper publication was also done in the

matter, and the Bank proceeded ex parte against the

employee. The employee has submitted various

representations to the authorities permitting him to

rejoin. However, by an order dt.07.02.1991, he was ::5::

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discontinued from service and he was not permitted to

join the duty on the ground that his absence was treated

as 'voluntary abandonment'.

The Tribunal as well as the learned Single Judge

has arrived at the conclusion that the action initiated by

the Bank was in violation of principles of natural justice

and fair play, and the Industrial Tribunal was justified in

holding that the unilateral action of the Bank in

terminating services of the employee was also not in

consonance with the established procedure of Law.

The operative paragraph of the order passed by the

learned Single Judge in Writ Petition No.13303 of 1999 is

reproduced as under :

"I am of the opinion that the award passed by the Industrial Tribunal does not call for any interference by this Court under Article 226 of the Constitution of India. Firstly, treating the services of workman as 'voluntary abandonment of bank's service' is not in consonance with the established procedure of law and secondly, it is in gross violation of principles of natural justice. Further, the Bank did not bring to the notice of the Industrial Tribunal that termination was done as per the settlement reached between the parties. Therefore, it cannot be said that the Industrial Tribunal has committed any error in setting aside the termination order of the workman. Further, the workman at para no.11 of his claim petition stated that owing to termination from service, he and his family members have been virtually starving for food for the past ::6::

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seven years and they have no other means to survive. He further stated that he is unable to maintain and look after his children and their welfare. The respondents though filed a detailed counter, did not assert that the workman was gainfully employed during the pendency of the I.D. before the Industrial Tribunal. It was simply stated that the financial hardships / personal problems of the workman as narrated in paragraphs 11 and 12 of the claim statement are not correct and the workman shall be put to strict proof of the same. Except this, nothing was stated. However, the Industrial Tribunal held that the order of termination was ex facie illegal and since absenteeism is a matter of record, while invoking its powers, in the facts and circumstances of the case and to meet the ends of justice, directed for reinstatement of workman with continuity of service and with 50% back wages. Though no much reasons were furnished for awarding 50% back wages, I am of the opinion that the Industrial Tribunal has denied 50% back wages in view of the fact that absenteeism is a matter of record and the workman cannot be led without any punishment."

In the considered opinion of this Court, as the

Award does not suffer from any legal infirmity /

perversity, no notice was served to the workman before

terminating his services and as the same was not in

consonance with the Shastri Award, the Tribunal was

justified in directing reinstatement of the workman with

50% back wages.

The learned Single Judge has confirmed the order

passed by the Tribunal directing payment of 50% back

wages along with reinstatement. However, as the ::7::

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workman is no more, the learned Single Judge has