Madras High Court
Union Bank Of India vs The Presiding Officer on 9 February, 2023
Author: J.Nisha Banu
Bench: J.Nisha Banu
W.P.No.2022 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.11.2022
PRONOUNCED ON : 09.02.2023
Coram:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P.No.2022 of 2015
Union Bank of India
Rep. By its Dy.General Manager (Personnel)
Central Office
Union Bank of India
239, Vidhan Bhavan Marge
Mumbai 400 021 ... Petitioner
/Respondent in ID
Vs.
1.The Presiding Officer
Central Government Industrial Tribunal
Cum Labour Court, Chennai. ..1st respondent
/Labour Court
2.M.K.Narayanan ..2nd respondent
/Petitioner in I.D.
Page No.1/14
https://www.mhc.tn.gov.in/judis
W.P.No.2022 of 2015
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari, to call for the records of the 1st
respondent in I.D.No.37 of 2013 and quash the award dated 12.08.2014.
For Petitioner : Mr.Anand Gopalan
for M/s.T.S.Gopalan and Co.
For Respondents : R1- Tribunal
R2 – Mr.Balan Haridas.
ORDER
The Writ Petition is filed by the Union Bank of India/Employer challenging the award passed by the 1st respondent – Industrial Tribunal in ID No. 37 of 2013 and quash its award dated 12.08.2014.
2. The 2nd respondent joined the services of the petitioner bank on 01.11.1961. The 2nd respondent has two sons, and they were having two industries from the year 1985 and they availed the cash Credit Loan from the petitioner branch for which 2nd respondent became guarantor and Page No.2/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 pledged his house. On 28.11.1995, the 2nd respondent made an application to the petitioner Bank for voluntary retirement from service. After submitting the letter, the 2nd respondent along with his family migrated to Baroda.
3.The Petitioner Bank's Zonal office at Chennai addressed a letter dated 29.12.1995 to its Regional Office, Coimbatore, stating that the voluntary application of the 2nd respondent could not be considered, as he had loans outstanding with the petitioner Bank.
4. Decision of the Zonal Office was communicated to the 2nd respondent only on 30.09.1996. A notice was issued to the 2 nd respondent pointing out his unauthorized absence and directed him to report for duty within 30 days, failing which he will be treated as having left the service. Page No.3/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015
5. All the communications were undelivered to the 2nd respondent. On 15.06.2003, the 2nd respondent attained the age of superannuation. Following his superannuation, the 2nd respondent made a request through letter dated 03.06.2004 to petitioner Bank to settle his dues including gratuity and provident fund, mentioning his new address in Gujarat.
6. As far as gratuity payable to the 2nd respondent is concerned, the petitioner Bank informed him that the same was transferred to the loan accounts of his sons in Gandhi Puram Branch. However, in respect of pension, the petitioner Bank took a stand that they have treated the 2nd respondent as if he had abandoned his service and therefore, it was projected as if the 2nd respondent is not entitled to the benefits of pension under pension regulations.
7. Since the 2nd respondent's claim for pension has been refused, he Page No.4/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 raised an industrial dispute in I.D.No.37 of 2013. On 12.08.2014, the impugned award was passed by the Labour Court, holding that the 2nd respondent was deemed to have retired from service and there was a deemed acceptance of his application for voluntary retirement and non- following of the 3 months mandatory notice period is only an administrative inconvenience of the bank and hence the 2nd respondent is eligible for the pension.
8. The petitioner Bank, challenging the Award, filed this writ petition on the grounds that the dispute was raised after the lapse of 18 years; the dispute was hit by delay and laches. The 2nd respondent has not reported for work from 21.11.1995 and since his whereabouts were unknown, it is deemed abandonment of service.
9. The learned counsel appearing for the petitioner Bank would submit that the 2nd respondent was covered under Provident fund, however, Page No.5/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 he had not opted for pension and hence he was not covered under the Pension regulations. Hence, his application seeking to be relieved under the Voluntary Retirement Scheme was not maintainable. As per the pension regulations, an employee ought to serve 90 days notice period and only thereafter, he could be relieved under the Voluntary Retirement Scheme.
10. The learned counsel for the petitioner has relied on the following decisions and submitted that the delay in raising the industrial dispute would make the right of the person non-existent.
1. U.P. SRTC v. BABU RAM reported in (2006) 5 SCC 433,
2. U.P.SRTC v. RAM SINGH reported in (2008) 17 SCC 627
3.ASSTT. EXECUTIVE ENGINEER, KARNATAKA v.
SHIVALINGA reported in (2002) 10 SCC 167.
4. PRABHAKAR v. Sericulture Deptt., reported in (2015) 15 SCC 1.
5. ASSTT. ENGINEER, CAD v DHAN KUNWAR reported in (2006) 5 SCC 481.
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11. The learned counsel for the 2nd respondent/employee would submit that the plea of the petitioner bank that the 2nd respondent is not eligible for pension as he had opted for Provident fund scheme, was not raised before the Labour Court, therefore, it cannot be raised for the first time before this court under Article 226. The industrial dispute was adjudicated before the Labour Court on the premise that 2nd respondent/employee is a pension optee and the Bank has not contradicted the said plea. The learned counsel relied on the following decisions and submitted that on expiry of period as stipulated in Pension Regulations, the employee is deemed to have been retired.
1. DINESH CHANDRA SANGAMA v. STATE OF ASSAM AND ORS., reported in [1978 (1) LLJ 17]
2. P. SUNDARASIVIDU v. CENTRAL BANK OF OINDIA AND ORS., reported in CDJ 2003 MHC 1165
3. HARJINDER SINGH v. PUNJAB STATE WAREHOUSING CORPORATION reported in 2010 (3) SCC 192
4. M/S FATEH CHAND v LABOUR COURT AND ANR., reported Page No.7/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 in CDJ 2012 DHC 045
5. AMANULLAH v CHENNAI PORT TRUST AND ORS., reported in CDJ 2014 MHC 3755
6. D. LOGAN v R. V. GOVERNMENT BOYS HR. SEC SCHOOL AND ORS., reported in CDJ 2015 MHC 6645
7. M PANDIYAN v CGIT AND ORS. (WP NO. 18785 AND 32959 OF 2015 dated 14.02.2022)
8. INDIAN OVERSEAS BANK AND ORS. v OM PRAKASH LAL SRIVATSAVA reported in 2022 (3) SCC 803
12. It is a matter of record that this Court in M.P.Nos.1 and 2 of 2015 dated 19.01.2016 passed the following directions, “i) The petitioner-Bank is directed to deposit a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) to the credit of Industrial Dispute in I.D.No.37 of 2013, on the file of the Central Government Industrial Tribunal-Cum-Labour Court, Chennai, within a period of six weeks from the date of receipt of a copy of this order.
ii) On such deposit being made by the petitioner- Page No.8/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 Bank, the second respondent-workman is permitted to withdraw a sum of Rs.6,00,000/- (Rupees Six Lakhs only) on furnishing a personal bond to the petitioner-Bank to the effect that he shall undertake to return the sum of Rs.6,00,000/- to the petitioner-Bank with simple interest at the rate of 9% per annum, in the event of the petitioner- Bank 6 succeeds in the Writ Petition.
iii) On furnishing such personal bond by the second respondent-workman to the satisfaction of the petitioner- Bank, the amount of Rs.6,00,000/- shall be permitted to be withdrawn by the second respondent, and the Labour Court is directed to invest the remaining sum of Rs.4,00,000/-, in the petitioner-Bank itself, in an interest bearing account, and the same shall abide by the final orders to be passed in the Writ Petition.
iv) Subject to the compliance of the aforesaid conditions, the interim order already granted is made absolute.”
13. Heard both sides and perused the materials available on record. Page No.9/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015
14. The findings of the Labour Court is that the request for voluntary retirement by the 2nd respondent was one under Sub-Regulation-29 read with Sub-regulation-3 of the pension scheme. Under Sub-regulation-3, an employee may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than 3 months giving reasons. In spite of the fact that the 2nd respondent wanted retirement with immediate effect, his request was not considered by the authorities. It was not even considered as prescribed under regulation-29(1). In the absence of any decision by the authority and the absence of communication regarding any decision, the proviso under the Sub-regulation-2 of 29 will necessarily come into play. As per the proviso, if the authority is not granting any permission for retirement before expiry of the period specified in the notice, retirement shall become effective from the date of expiry of that period.
15. In the case on hand, the Labour Court given a finding that when Page No.10/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 the employee given request for voluntary retirement under Sub-Regulation 2 of Regulation 29 read with Sub-Regulation 3, the authorities would have considered the request. But instead of considering the said request, the petitioner bank taken a stand that the 2nd respondent sought voluntary retirement without giving three months notice. But the 2nd respondent sought voluntary retirement with immediate effect on health grounds and so it was a request for exemption from giving any notice period of three months and so the Labour Court has rightly found that in such circumstances, the proviso to sub-Regulation 2 should come into play and the petitioner must be deemed to have retired from service on expiry of the said period.
16. The Labour Court also rejected the plea of the petitioner Bank that the 2nd respondent abandoned the service by holding that only due to extra-ordinary circumstances, 2nd respondent made a request for voluntary retirement and so the action of the 2nd respondent need not be treated as Page No.11/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 abandonment of service.
17. The Labour court also held that as far as the loan granted to the 2nd respondent's sons and he stood as guarantor is concerned, there was no necessity for the Bank to worry at all, as the salary of the 2 nd respondent was not given as security; on the other hand, the loan was well secured by the property of the 2nd respondent, so the employment of the 2nd respondent and the loan arrears due to the bank should not have been connected with each other.
18. In the light of the aforesaid discussion, I find no perversity in the findings of the Labour Court. The Writ petition filed by the Bank is devoid of merits and accordingly, this writ petition is dismissed. The award of the Labour Court is confirmed. The 2nd respondent/employee is permitted to withdraw the remaining amount of Rs.4,00,000/- along with interest, lying with the petitioner Bank. No costs.
Page No.12/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 09.02.2023 Index:Yes/No Internet:Yes/No Speaking Order: Yes/No Jer/nvsri To The Presiding Officer Central Government Industrial Tribunal Cum Labour Court, Chennai.
Page No.13/14 https://www.mhc.tn.gov.in/judis W.P.No.2022 of 2015 J.NISHA BANU, J., Jer/nvsri W.P.No.2022 of 2015 09.02.2023 Page No.14/14 https://www.mhc.tn.gov.in/judis