The Chief Manager Ir vs Industrial Tirbunallabour ...
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Telangana High Court

The Chief Manager Ir vs Industrial Tirbunallabour ... on 24 October, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

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             THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

                     WRIT PETITION No.22320 of 2004

ORDER:

This writ petition is filed by Union Bank of India (Bank, for short) assailing the Award passed by the Central Government Industrial Tribunal- cum-Labour Court, dated 31.03.2004, in respect of 2nd respondent-Mr. R.Devdas (hereinafter, the Workman).

2. Brief facts of the case, as per the writ affidavit, are that the Workman joined the petitioner-Bank as sub-staff in 1974 and was promoted to clerical cadre in 1981. He was on unauthorized absence for more than 90 days and therefore invoking Clause 17 of Bipartite Settlement dated 10.04.1989, a notice was served on the Workman on 30.07.1993 advising to report to duty within 30 days. As there was no response, the Workman was deemed to have voluntarily retired from service of the Bank with effect from 30.08.1993 and a communication to that effect was sent on 10.09.1993. It is stated that previously he was charge sheeted on 18.10.1989 for unauthorized absence from 05.04.1989 to 19.08.1989 for a period of 108 days. And again charge sheeted on 29.02.1992 for unauthorized absence from 22.04.1991 till 29.02.1992 and imposed minor penalty. Yet again he was charge sheeted on 23.07.1992 for unauthorized absence from 18.05.1992 to 23.07.1992 and a minor penalty was imposed. Further again on 23.10.1992, he was charge sheeted for unauthorized absence from 24.08.1992 to 23.10.1992 and a minor penalty of warning orders 22.12.1992 were issued. Thereafter, once

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again the Workman was continuously on unauthorized absence since 15.11.1992. In view of the frequent unauthorized absence, the petitioner- Bank deemed the Workman as not interested in the employment, a notice under Clause 17 of Bipartite Settlement dated 10.04.1989 was issued by the competent authority advising to report to duty within 30 days and the notice was delivered to the residential address of the Workman on 03.08.1993 and as there was no response, a final notice was sent to the |Workman on 10.09.1993 informing him that as he failed to respond to the Bank notice dated 30.07.1993, the Workman was treated to have voluntarily retired from service with effect from 30.08.1993.

The Workman approached the Labour Court by filing LCID No.264 of 2001. The Labour Court passed the impugned Award. Challenging the same, the petitioner-Bank filed this writ petition.

3. Heard Dr. K. Lakshmi Narasimha, Standing Counsel appearing for the petitioner-Bank; and Mr. Gadi Praveen Kumar, learned Deputy Solicitor General for respondent No.1, and Mr. Sujith Jaiswal, learned counsel for respondent No.2-Workman.

4. Learned Standing Counsel for petitioner-Bank would submit that respondent No.2-Workman is a habitual absentee and has been charge sheeted umpteen times for his unauthorized absence and was imposed minor penalties and warning orders were also issued. Learned Standing Counsel would submit that in view of the judgment of the Hon'ble Supreme Court in

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Syndicate Bank v. The General Secretary, Syndicate bank Staff Association 1, it is not necessary for the Bank to hold an enquiry in case of invocation of Clause 16 of Bipartite Settlement dated 17.09.1984, which is a similar clause in vogue prior to Bipartite Settlement dated 10.04.1989 and that principles of natural justice are inbuilt in Clause 16 of Bipartite Settlement. It is also argued that the judgment of Hon'ble Supreme Court in D.K. Yadav v. M/s JMA Industries Ltd 2is not applicable and therefore the Labour Court erred in passing the impugned Award.

5. Learned counsel for the 2nd respondent-Workman would contend that the petitioner-Bank failed to honour the impugned Award within 30 days as directed by the Labour Court and the petitioner-Bank failed to pay the wages under Section 17B of the Industrial Disputes Act. Learned counsel would also submit that the petitioner-Bank may be directed to pay wages as per Section 17B of the Act from 06.12.2004 to 30.06.2016 which is the period commencing from granting of stay by this Court till the petitioner attains age of superannuation, and that there is no merit in the writ petition and the same is liable to be dismissed.

6. Having heard the respective contentions, and perusing the impugned Award passed by the Labour Court, it is not in dispute that the petitioner resorted to unauthorized absence on several occasions either due to his medical condition or for attending to his ailing mother and he was charge sheeted as afore-stated and suffered minor penalties and ultimately for being

AIR 2000 SC 2198

1993 (67) FLR 111

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on unauthorized absence since 15.11.1992, the competent authority invoked Clause 17 of the Bipartite Settlement and terminated his services. The Workman challenged the same before the Labour Court.

The Labour Court, after due enquiry and considering the evidence of the Workman (as WW1) and documentary evidence on behalf of Workman Exs.W1 to W7; and the evidence of MWs.1 and 2 on behalf of petitioner-Bank and the documentary evidence Exs.M1 to M20 on behalf of petitioner-Bank passed the impugned Award, by observing as follows:

"10. ..... No doubt there is a technical flaw of not conducting an enquiry. Yet, it may be seen that he had been habitual absentee. So I am of the opinion that some relief can be given to him but he cannot be reinstated as a clerk. He originally joined as a sub-staff and he shall be appointed within 30 days from the publication of this Award as sub-staff as a fresh candidate. However, his services from 1.3.74 till 14.11.92 shall be taken into account for terminal benefits. However, as he has treated as voluntarily retired and even he has received payments, the same will have to be deducted at the time of his final settlement and he is not entitled for any backwages or any other relief."

7. This writ petition was filed in 2004 and as per the Cause Title, the Workman was 44 by the time of filing this writ petition. We are now in 2024. The petitioner would be around 64 years and might have crossed the age of superannuation. A perusal of the impugned Award would show that the Labour Court directed reinstatement of Workman as sub-staff as a fresh candidate and his previous service from 01.03.1974 to 14.11.1992 shall be

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taken into account for terminal benefits, and further as the Workman was deemed voluntarily retired and received payments, the same shall be deducted on final settlement.

8. The 2nd respondent-Workman claims Wages under Section 17B of the Industrial Disputes Act, 1947. He filed I.A.No.1 of 2023 wherein in paragraph No.6 of the Affidavit filed in support thereof, the Workman states as follows:

"Since 2004 I am left unemployed and faced financial crises in meeting the ends of my life and education of my children."

9. At this juncture, it is relevant to refer to Section 17B of Industrial Disputes Act, 1947, which states as follows:

17B. [Payment of full wages to workman pending proceedings in higher Courts.[Inserted by Act 46 of 1982, Section 11 (w.e.f. 21.8.1984).]

- Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate

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remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period of part, as the case may be. ]

10. In view of the provision under Section 17B of the Industrial Disputes Act, 1947, and considering the writ affidavit by the 2nd respondent-Workman before this Court that he was unemployed during the relevant period, the petitioner-Bank shall compute and pay the benefits under Section 17B of the Act as applicable to the Workman. Further considering that the Workman has crossed the age of superannuation, the petitioner-Bank shall compute and pay the terminal benefits as 'Final Settlement' as per the impugned Award by duly giving credit to the payments already received by the Workman, within a period of eight weeks from the date of receipt of a copy of this order.

11. Accordingly, the writ petition is dismissed with the above direction. No costs. Miscellaneous applications, pending if any, shall stand closed.

__________________________ JUSTICE NAGESH BHEEMAPAKA 24th October, 2024 ksm