Allahabad High Court
Pramod Kumar Gupta Son Of R.C. Gupta vs Central Government Industrial ... on 18 March, 2005
Equivalent citations: 2005(2)ESC1152, (2005)IIILLJ291ALL, 2005 ALL. L. J. 2762, (2005) 32 ALLINDCAS 327 (ALL), (2005) 3 LABLJ 291, (2005) 4 LAB LN 436, (2005) 2 ESC 1152, (2005) 6 ALL WC 5543, (2008) 2 ESC 842
Author: V.C. Misra
Bench: V.C. Misra
JUDGMENT V.C. Misra, J.
1. Sri Manu Khare, learned counsel on behalf of the petitioner, learned standing counsel on behalf of respondent No. 1 and Sri Ashok Trivedi, learned counsel on behalf of the respondents No. 1 & 2-Bank are present.
2. By means of this present writ petition, the petitioner has challenged the award dated 23.4,2001 passed by the Labour Court, Kanpur- respondent No. 1 arising out of the Industrial Dispute No. 15 of 1999 seeking reinstatement in service on the post held by him with all consequential benefits of continuity of service along with arrears of salary and promotion.
3. The facts of the case in brief are that the petitioner was appointed as a probationary clerk with the respondent-Bank in the year 1980 and thereafter he was confirmed in the service during the year 1981. The petitioner was posted at Jeoni Mandi Agra Branch of the Bank. The petitioner remained absent from duty without leave since 12.11.1991. He was asked vide notice dated 13.5.1992 by the respondent-Bank to join the services within 30 days from the date of issuance of the said notice, The petitioner reported duty on 11.6.1992 within 30 days. The petitioner again remained absent without leave from the Bank w.e.f. 21.6.1992. A notice dated 8.9.1992 was issued to the petitioner, directing him to report on duty within 30 days from the date of publication of the notice and submit an explanation for unauthorized absence, a copy of which has been filed as Annexure No. 1 to the writ petition. This notice is alleged to have been published on the Notice board of the Bank on 9.9.1992. The said notice was served on the petitioner on 14.9.1992 by a Registered post. The petitioner reported on duty well within the period of 30 days from 14.9.1992. Instead of permitting the petitioner to join the duty, the Branch Manager issued a communication dated 12.10.1992 to the petitioner mentioning therein that, since the joining report of the petitioner was beyond 30 days from the date of publication of its notice on the Notice Board of the Bank, he would not be allowed to join and also the reason of his absence was unacceptable, a copy of which has been filed as Annexure No. 3 to the writ petition. Subsequently, vide order dated 28.11.1992 passed by the General Manager of the respondent-Bank, the petitioner deemed to have voluntarily retired from the service of the Bank, in view of the Clause 17 of the Vth Bipartite Settlement dated 10.4.1989 (hereinafter referred to as the Settlement) (quoted in counter affidavit dated 22.9.2001 of the respondent-Bank), dealing with circumstances under which the employment of an employee was treated as voluntarily cessation of the employment.
4. The petitioner being aggrieved by the order dated 28.11.1992 passed by the General Manager, Vijaya Bank, Bangalore (annexure No. 5 to the writ petition) raised an industrial dispute before the Assistant Labour Commissioner (Central) under the Central Industrial Dispute Act, 1947. Since conciliation proceedings failed, the Central Government vide its order dated 25.1.1990 made a reference under Section 10 of the Industrial Dispute Act for adjudication of the dispute, as to whether the termination of service of the petitioner vide order dated 28.11.1992 w.e.f. 8.10.1992 was legal and justified, and if not, to what relief the petitioner was entitled to. The Central Industrial Tribunal cum Labour Court, Kanpur after hearing the parties to the dispute passed its award dated 23.4.2001, which was published on 27.4.2001 (Annexure No. 9 to the writ petition) declined to grant any relief to the petitioner. Being aggrieved, the petitioner has preferred the present writ petition before this Court.
5. The contention of the learned counsel of the petitioner in the present case is that he was a permanent and confirmed employee of the respondent-Bank and, therefore, no such order of deemed voluntarily retirement/cessation from employment could he passed being in contravention of Article 14 of the Constitution of India. The allegation of the unauthorized absence from the duty at the most could be alleged as misconduct, which required an enquiry before any adverse order could be passed against the petitioner- employee, and even otherwise also the impugned order itself was not in conformity with the Vth Bipartite Settlement. The order dispensing with the service of the petitioner amounted to victimization and unfair labour practice, being a colourable exercise of managerial power. It has also been stated that the notice dated 8.9.1992 sent by the Bank without any basis was premature, as 90 days' period as stipulated in the Settlement computed from 26.6.1992 would have expired on 21.9.1992. More so, since, the notice dated 8.9.1992 had been served upon the petitioner through Registered Post only on 14.9.1992, the computation period of 30 days should have been made from 14.9.1992 and not from 8.9.1992, the date of notice. It has also been submitted that since the provisions of Section 25F of the Industrial Dispute Act, 1947 have not been complied with, the impugned termination order was wrong, bad and illegal, which the Central Industrial Tribunal cum Labour Court - respondent No. 1 had failed to appreciate and had misread and misconstrued the oral testimony and evidence brought on record along with the judgment of Hon'ble Supreme Court in the Case of Syndicate Bank v. Central Secretary Syndicate Bank Staff Association, reported 2000 (1) LLJ 1630.
6.The contention of the learned counsel for the respondents-Bank is that the services of the petitioner came to an end under the Vth Bipartite Settlement, dealing with the circumstances under which it become applicable. Firstly, when the petitioner remained absent for 90 days w.e.f. 12.11.1991 to 13.5.1992, thereafter when the first notice-dated 13.5.1992 was issued requiring him to join the duty within 30 days. However, since the petitioner had joined the duty within the said period. The respondent-bank allowed him to join the duty and did not take any disciplinary action against him, but as per Clause 17 (d) of the Bipartite Settlement, the petitioner again absented himself on 21.6.1992. As required, under the second notice which was given to him after 30 days of his absence i.e. 21.6.1992, requiring him to report on duty within 30 days from the date of the publication of the notice, but the petitioner failed to join. More so, since his explanation for unauthorized absence was not found satisfactory, therefore, he was not allowed to join his duty on 12.10.1992 and thus, the same amounted as an opportunity of hearing vide letter dated 28.11.1992 before intimating him about his voluntary cessation of employment. It has also been argued by the learned counsel for the respondent that the impugned award does not suffer from any illegality being based on a pure finding of facts, which is not liable to be interfered in the exercise of discretionary power of this Court under Article 226 of the Constitution of India, and, the terms of the Settlement cannot be challenged in the writ petition, mutually agreed between the management and staff. It was also not necessary at all in law for conducting any sort of enquiry before cessation of employment of the petitioner. In support of his contention, the learned counsel for the respondents has relied upon the decisions given in the case of Syndicate Bank v. The General Secretary Bank Staff Association (2000 (3) Supreme To-Day 541), Maan Singh v. Union of India and Ors. (2003 (3) SCC 464), Anil Kumar Srivastava v. Chairman, L.I.C. of India and Ors. (2003 (2) AWC 1113), and in the case of Ram Prasad Gupta v. Allahabad Bank and Anr., 2004 (1) AWC, 697).
7. The existing relevant provisions of Clause 17 (as amended) of Vth Bipartite Settlement dated 10.4.1989, as quoted in para 6 of the Counter affidavit filed on behalf of respondents No. 2 and 3 reads as under:
"17 (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 of 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 given 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 the grounds for coming to the conclusion that the employee has not intention of joining duties and furnishing necessary evidence, where 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 a vocation and he has not intention of not joining duties, the employee will be deemed to have voluntarily retired from the bank's service on the expiry of the said notice. In the even of the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within 30 days from the date of the expiry of the aforesaid notice without prejudice to the bank's right to have any action under the law or rules of service.
17(b)...........
17(c) 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 to 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. Learned counsel for the petitioner has annexed a photocopy of Codified Circular No. 101/1993, dated 24.9.1993 issued by the respondent-Bank regarding the unauthorized absence and voluntarily cessation of employment as Annexure R.A.2 to the rejoinder affidavit. The relevant portion of the Clauses are quoted hereunder:
"1. The unauthorized absence of employees is the main cause for disruption of routine/regular work at branch/office. The staff requirement assessment is made on the basis of the no of persons on the muster rolls of the bank. The assessment goes haywire mainly because of non-availability of all the staff members who are on the muster rolls of the Bank. Some of those who are on unauthorized absence may be employed in more gainful occupation. Some of them are also out of the country. There are also some who are away from their duties without submitting leave applications and with or without oral permission from their higher authorities. This kind of indiscipline of unauthorized absence should be dealt with effectively. Absence from duty in contravention of the leave rules of the Bank is a misconduct within the meaning of Regulation 13 of Vijay Bank Officer Employees' (Conduct) Regulation 1981 and Clause 19.7(a) of Bipartite Settlement. Failure to take proper action by the concerned controlling authorities, immediately on time, on unauthorized absence cases, will definitely result in more number of unauthorized absence cases. Hence, taking proper action immediately on time is the only effective remedy to curb such indiscipline.
5.0 Procedure to be adopted to deal with unauthorized absence of staff members : -
Absence without obtaining sanction of leave and taking leave in violation of the leave rules of the Bank amounts to "UNAUTHORISED ABSENCE" subject to the foregoing guidelines:
5.1 When a staff member is on unauthorized absence for more than a day or two without intimation to the controlling authority, a letter is to be addressed to him/her in the first instance as per ANNEXURE-1 pointing out that his/her absence is unauthorized and directing him/her to report for duty immediately. This letter has to be sent to the last recorded residential address, which is duly acknowledged by the bank to the employee by registered post acknowledgement due.
5.3 If the employee neither reports for duty nor submits a proper leave application INSPITE OF ABOVE MENTIONED LETTER (Annexure-1) the controlling authority should issue a show cause notice to him/her as per ANNEXURE-II calling for his/her explanation with regard to his/her unauthorized absence and advising him/her to report for duty immediately indicating, that failure to report for duty will result in initiation of disciplinary action.
5.4 If the employee fails to reply to the show cause notice (issued as per Annexure-II) and to report for duty he/she is liable for disciplinary action. Even if he/she submits explanation, which is not acceptable to the leave sanctioning authority, he/she will be treated as remaining absent unauthorizedly. Such cases may be referred to the concerned Regional/Zonal Office, along with all the connected records/correspondence with the recommendations of the concerned authorizes. Only in cases, where disciplinary action is warranted such cases should be forwarded to personnel Department (IRD) by the concerned Regional/Zonal Offices.
5.7 In cases, where the employee is on long unauthorized absence and either his/her whereabouts are not known or the communication addressed to him/her are not delivered, it may be necessary for the bank to publish Notice in the newspaper before taking disciplinary action against him/her. Such cases may be referred to the concerned Regional/Zonal Offices.
6.4 Clause-17 of the V Bipartite Settlement will apply only in cases of desertion i.e. where there is absence from duty without any intimation. If there is an intimation from the employee, but the absence is unauthorized otherwise, the Bank will take action in terms of disciplinary procedure laid down in the previous settlements and not in terms of Clause-17 of the V Bipartite Settlement.
7.2 In case, the final notice sent to the employee by Regd. Post Ack Due is returned undelivered by the postal authorities, as a matter of abundant caution, the Regional/ Zonal Office should get the final notice published in a leading local newspaper immediately. If the employee happens to belong to sub-staff cadre, the final notice should be published in a vernacular newspaper.
(Emphasis supplied) 7.3 In case the employee reports for duty during the notice period of 30 days he/she should he allowed to report for duty by the branch/office subject to production of medical and fitness certificate etc., by him/her, provided he/she was sick. He/she should also be asked to submit explanation for his/her unauthorized absence. If the explanation given by the employee is not satisfactory to the sanctioning authority/controlling authority, the connected papers relating to the long unauthorized absence of the employee should be sent to the personnel Department (IRD), HO by the branch/office immediately for initiating disciplinary proceeding against the employee concerned.
7.4 In some cases, it may so happen that, the employee concerned after reporting for duty for a day or for a brief period in response to final notice, may again remain absent from duty unauthorizedly. In such an eventuality the Regional/Zonal Office concerned need not go through the procedure of waiting for 90 days/150 days as the case may be again, and they can issue the second notice after 30 days of such absence by giving another 30 days time to the employee concerned to report for duty by following the same procedure as mentioned in Clause 7.3 above. A specimen coy of the second final notice to be issued to the employee is enclosed as per ANNEXURE- VI."
9. Learned counsel for the petitioner has drawn the attention of this Court to paras 5, 8, 9 and 12 of the rejoinder affidavit wherein the allegations of the respondent-Bank with regard to unauthorized absence of the petitioner stating that the same was without any information has been categorically denied. The contention of the petitioner is that he was ill during the said period of absence and an intimation of the said facts had been sent to the respondent-Bank authorities through a letter dated 15.11.1991 informing his inability to attend the duties on account of his illness accompanied by a medical certificate. This letter dated 15.11.1991, a copy of which has been annexed as Annexure R.A.-1, had been duly received by the respondent-Bank on the same date i.e. 15.11.1991 and in token of the receipt the official concerned had signed and placed the seal of the Bank. In view of the said intimation with regard to absence from duty and in terms of the provisions laid down in paragraph 6.4 of the Codified Circular No. 101/93 dated 24.9.1993, a copy of which has been filed as Annexure R.A.-2 to the Rejoinder affidavit referred to hereinabove and the provisions of Clause 17 of the Vth Bipartite Settlement are not attracted as also referred to in Sub-clause (a) of Clause 17 of the Bipartite Settlement and, thus the notice dated 13.5.1992 had been wrongly issued.
10. I have looked into the record of the case and heard learned counsel for the parties at length and find that the petitioner had informed the respondent-Bank authorities regarding his absence due to illness in writing vide letter dated 15.11.1991 which was duly received by the Bank authorities on the same date who in token of receipt had put its initial under the seal and thus, according to the provisions laid down in Clause 6.4 of the Codified Circular No. 101/93 dated 24.9.1993 read with Sub-clause (a) of Clause 17 of the Vth Bipartite Settlement (As amended) referred to hereinabove, the notice dated 13.5.1992 had been wrongly issued. The respondent-Bank should have, in case it found that the absence was otherwise unauthorized, taken action in terms of disciplinary proceedings, as laid down in the previous settlement and not in terms of the said Clause 17 of the Vth Bipartite Settlement. More so, according to the other provisions laid down in the aforementioned Codified Circular and Bipartite Settlement the respondent-Bank could take action after the expiry of the period of 30 days from the date of service of the notice dated 8.9.1992 served on the petitioner through registered post with acknowledgement due from the date of the receipt of the said notice which admittedly was received on 14.9.1992 and not from the date of issuance of the notice. The alleged publication of the notice dated 8.9.1992 posted, on the Notice Board of the Bank on 9.9.1992 is of no consequence, since as per the aforementioned provisions laid down in Clause 7.2 of the Codified Circular No. 101/93, in case the final notice sent to the employee by registered post acknowledgement due returned undelivered by the postal authorities, then the respondents should get the final notice published in a leading local newspaper immediately. Under the said circumstances the respondent-Bank for initiating disciplinary proceedings against the petitioner could have proceeded with in terms of Clause 7.3 of the Codified Circular No. 101/93 and not under Clause 17 of the Vth. Bipartite Settlement striking of his name from the establishment deeming he had voluntarily vacated his appointment.
11. I have also gone through the judgments/decisions cited by the learned counsel for the respondent-Bank, referred to hereinabove, in support of its case and I find that the cases cited by the respondent-Bank do not apply to the facts and circumstances of the present case. The judgment, referred to, in the case of Syndicate Bank v. The General Secretary, Syndicate Bank Staff Association and Anr. (2000 (3) Supreme Court 541 in Supreme To-Day) was in regard to refusal of the notice by the delinquent employee of the Bank and it has been held that under the circumstances no inquiry was required and reinstatement was not allowed. In the case of Man Singh v. Union of India and Ors. (2003 (3) SCC 464) in paras 13 and 14 of the said judgment the Hon'ble apex Court held as under :-
"13. These are appeals filed by the State of Punjab arising out of certain civil suits. In these cases, though dismissal of each of the respondents is effected on the basis of habitual unauthorized absence for long periods, the High Court upheld the decision of the courts below that the principles of natural justice having been violated such order of dismissal is vitiated.
14. These appeals stand dismissed."
12. In view of the above said facts and circumstances of the case and the observations made hereinabove, I find that the Labour Court-respondent No. 1 failed to take into consideration the above said facts in its right perspective and passed the impugned award dated 23.4.2001 which was published on 27.4.2001 (Annexure No. 9 to the writ petition), which is wrong and bad and is liable to be quashed. In my view the order dated 28.11.1992 (Annexure No. 5 to the writ petition) issued by the General Manager, Vijaya Bank - respondent No. 2 is also wrong, bad and illegal having been passed in contravention of the basic principles of natural justice by not affording any opportunity of hearing to the petitioner and in absence of any disciplinary proceedings having been initiated is liable to be quashed.
13. Accordingly, the writ petition is allowed. The impugned award dated 23.4.2001 passed by the Labour Court- respondent No. 1 which was published on 27.4.2001 and the order dated 28.11.1992 passed by the General Manager, Vijaya Bank- respondent No. 2 are hereby quashed. It is hereby directed that respondent- Bank shall reinstate the petitioner on the post held by him with continuity in service and the petitioner shall also be entitled to all other consequential benefits to which he is entitled to, in accordance with law. No order as to costs.