Bombay High Court
Act And Having Its Office At Bank vs Shri M. N. Jivnani on 29 November, 2013
Author: M. S. Sonak
Bench: M. S. Sonak
skc WP-86-2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 86 OF 2009
State Bank of India ]
A Banking Company under the ]
Banking Companies Regulation ]
Act and having its office at Bank ]
Bhavan, Madam Cama Road, ]
Mumbai 400 021 ] ..Petitioner
vs.
1. Shri M. N. Jivnani
ig ]
residing at Bk. No. 1506, ]
Room No. 6, Sector No. 30-A ]
Ulhasnagar 4 (Maharashtra State) ]
2. State Bank of India Staff Union]
A Trade Union registered under the ]
Trade Unions Act, and having its ]
Registered Office at C/o. U. P. Naik, ]
68/86, Harkoovar Bhai Building ]
Bakhale Path, Thakrdwar Road, ]
Mumbai 400 002 ] ..Respondents
Mr. P. Gopalkrishnan i/b. Bhave & Co. for Petitioner.
Ms Meena H. Doshi for Respondents.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment: 22.11.2013
Date of Pronouncing the Judgment: 29.11.2013
JUDGMENT :-
1] Rule was issued in this petition on 16.02.2009 and after record of prima facie findings the award impugned in this petition 1/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 i.e. award dated 31.08.2007 passed by the Central Government Industrial Tribunal / Labour Court granting Respondent No. 1 reinstatement with continuity of service to claim retirement benefits, was stayed. By the same order, this court had granted liberty to the Respondent no. 1 to make an application under Section 17B of the Industrial Disputes Act, 1947 ('said Act'). However, no such application has been made by the Respondent No.1 during the pendency of the petition.
2] The facts necessary for the purposes of evaluating the challenges to the impugned award lie in a narrow compass.
3] There is no dispute that the Respondent no. 1 was serving as a cashier cum clerk with the Petitioner bank from 05.08.1982 upto 05.04.1994. Between the period 23.04.1993 and 07.05.1993, the Respondent no. 1 availed leave and left for Japan without furnish of any undertaking that he shall not accept any employment in the foreign country and resume duties upon conclusion of the sanctioned leave period. Upon expiry of leave period however, the Respondent no. 1 applied for and was sanctioned sick leave for the period between 10.05.1993 and 19.05.1993. Respondent no.
1, upon conclusion of this period once again applied for and was 2/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 sanctioned earned leave for the period between 20.05.1993 and 18.06.1993. Upon conclusion of this period, Respondent no. 1 for a considerable period neither reported for duty nor bothered to apply for any leave. On 20.08.1993 however, the Petitioner received application dated 20.06.1993 requesting for extension of leave. The application was accompanied by a purported medical certificate in Japanese language, which according to the Petitioner was not decipherable. By telegram dated 08.10.1993, the Petitioner called upon Respondent no. 1 to resume duties immediately. In response, the Respondent no. 1 once again applied for extension of sick leave by application dated 12.10.1993, again accompanied by a medical certificate in Japanese language. By letter dated 30.10.1993, the Petitioner made it clear that the certificate in Japanese language was not decipherable and the Respondent no.
1 ought to have reported for duties since his previous applications for extension of leave had been declined. Despite all this, the Respondent no. 1 did not report for duties but addressed a letter dated 13.12.1993, which was received by the Petitioner only on 09.03.1994, once again seeking extension of leave. In the meantime, the Petitioner by Registered A.D. addressed notice dated 02.02.1994 to the Respondent no. 1 at his Ulhasnagar address and the Japan address directing him to report for duties immediately and 3/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 explain the absence without leave. The letters were however returned 'undelivered' by the postal authorities.
4] Faced with such a situation, the Petitioner addressed notice dated 05.03.1994 requiring the Respondent no. 1 to report for duty within 30 days from the date of notice, stating therein very clearly that in case the Respondent no. 1 fails to do so, he shall be deemed to have voluntarily retired from the services of the bank and shall also be liable to pay to the bank 14 days / one month's pay and allowances in lieu of the notice.
5] The aforesaid notice dated 05.03.1994 was addressed to the Ulhasnagar as well as the Japan address. The notice addressed to Ulhasnagar was returned 'undelivered' by the postal authorities.
However, the Respondent no. 1 in his deposition before the Industrial Tribunal has admitted the receipt of notice dated 05.03.1994 at Japan. In the circumstances, there can be no serious dispute that the notice dated 05.03.1994 was indeed received by the Respondent no. 1 at Japan.
6] As the Respondent no. 1 failed either to report for duty or even offer any legitimate explanation for such failure, the Petitioner 4/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 addressed letter / notice dated 24.05.1994 to the effect that the Respondent no. 1 is deemed to have voluntarily retired from the service of the Petitioner bank with effect from 05.04.1994 i.e. at the expiry of 30 days of the notice dated 05.03.1994. There is no dispute that the Respondent no. 1, as per his own deposition before the Tribunal has received the letter / notice dated 24.05.1994 at Japan.
7] There was no reaction / response from the Respondent no. 1 between the period 25.04.1994 and 09.05.1997 i.e. a period of over three years. On 09.05.1997 however, Respondent no. 1 preferred an appeal to the appellate authority questioning the letter / notice dated 24.05.1994. The service conditions applicable to the Respondent no. 1 provide for appeal being lodged within 45 days of the action impugned. In this case however the Respondent no. 1 has preferred the appeal after almost three years from the date of action impugned. The appeal was rejected by the appellate authority.
8] The Respondent no. 1, thereupon raised an industrial dispute demanding reinstatement with continuity of back wages. The dispute was admitted in conciliation, however the conciliation 5/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 proceedings failed. The appropriate government then made a reference to the Central Government Industrial Dispute / Labour Court (hereafter referred to as 'CGIT') being Reference No. CGIT-
2/9 of 2001.
9] The Respondent no. 1 filed his claim statement before the CGIT and the Petitioner filed its response. Documents were produced by both parties. Respondent no. 1 examined himself and Mr. Trevor Theodore Fernandes, Branch Manager, came to be examined on behalf of the Petitioner bank. The CGIT has made an award dated 31.08.2007 (hereafter referred to as "impugned award'). The operative portion of which reads as follows:-
"(a) Reference is partly allowed;
(b) 1st Party to reinstate 2nd Party Shri M. N. Jivanani
on his post from where he was asked to voluntarily retire, with continuity of service to claim retirement benefits;
(c) Prayer of 2nd Party to give back wages is rejected;
(d) there is no order as to its costs;"
10] Mr. Gopalkrishnan, the learned counsel appearing for the
Petitioner has attacked the impugned award on the ground that the same is riddled with errors apparent on the face of record, there is failure to take into consideration the Petitioner's case based upon 6/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 binding bipartite settlement, failure to abide by rulings of the Supreme Court of India, perversity in findings and non application of mind. The learned counsel also took me through the deposition of Respondent no. 1 and urged that the case set out by the Respondent no. 1 was inherently improbable and deserved no acceptance. The learned counsel, in particular, drew my attention to clause 15 of the bipartite settlement which governs the service conditions of the Petitioner's employees and submitted that the Petitioner's action in the present case was entirely consistent with said clause 15 of the settlement. The learned counsel also placed reliance upon the judgment of the Apex Court in the case of Syndicate Bank vs. General Secretary, Syndicate Bank staff Association & Anr.1 as also the following rulings in support of the Petitioner's case :
(i) Mahabali vs. Central Administrative Tribunal & Ors.2
(ii) C. Jacob vs. Director of Geology & Mining & Anr.3
(iii) Ramaswamy Murugesh vs. S. G. Bhonsale, the then Presiding Officer, 5th Labour Court & Anr.4
(iv) State of H.P. & Ors. vs. Presiding Judge & Anr.5
(v) Home Gowda Educational Trust & Anr. vs. State of Karnataka & Ors.6 1 2000-I-LLJ 2 2005(107) FLR 1211 3 AIR 2009 Supreme Court 264 4 2005 III CLR120 5 2006 II CLR 1019 6 (2006) 1 Supreme Court Cases 430 7/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 11] Ms. Meena Doshi, the learned counsel appearing for the Respondents, equally tenaciously defended the impugned award by submitting as follows:
(A) That the impugned award is made after consideration of all relevant facts and circumstances. There is no perversity involved in the findings and as such the award does not deserve to be interfered with by the writ court;
(B) This is not a case where the Respondent no. 1 failed to respond to the notices of the Petitioner and the material on record clearly establishes that the Respondent no. 1 did respond by applying for extension of leave from time to time. Such leave could not have been rejected on the only ground that the medical certificate submitted by the Respondent no. 1 was in Japanese language. The Petitioner has branches in Japan therefore they could have very well obtained a translation or verified the authenticity. This having not been done, the CGIT was fully justified in upsetting the Petitioner's action of terminating the services of the Respondent no.1 without either holding any enquiry or even otherwise complying with principles of natural justice and fair play.
(C) That without prejudice, the failure of the Respondent no. 1 to resume duties upon expiry of sanctioned leave could at the highest 8/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 have been treated as 'unauthorised absence' which is prescribed as a misconduct. In such circumstances, the Petitioner was obliged to hold a departmental enquiry in the course of which the Respondent no. 1 would have got opportunity to produce evidence to establish that his absence was on account of his sickness in Japan. By not holding any departmental enquiry and denying the Respondent no.
1 opportunity to show cause, the Petitioner bank has breached not only the bipartite settlement, but further has breached the principles of natural justice and fair play, which are absolutely non negotiable.
(D) Ultimately, it was submitted that clause 15 of the bipartite settlement upon which the Petitioner has placed reliance was not at all applicable to the fact situation of the present case. In any case, it was submitted that there is no compliance with clause 15 and therefore the action of the Petitioner was rightly upset by the CGIT.
12] Ms. Meena Doshi, in support of her submissions placed reliance upon the following rulings :
(i) Kamal Kishore Lakshman vs. Management of M/s. Pan American World Airways Inc. & Ors.7
(ii) Pramod Kumar Gupta vs. Central Government Industrial Tribunal-cum-Labour Court, Kanpur Nagar & Ors.8 7 (1987) 1 Supreme Court Cases 146 8 2005(4) L.L.N. 436 9/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009
(iii) Regional Manager, SBI vs. Rakesh Kumar Tewari9 13] With the able assistance of both the learned counsel I have perused the material on record, the impugned award and the rulings presented for consideration. In my judgment, the impugned award is unsustainable and deserves to be set aside.
14] The impugned award is almost entirely based upon the premise that the Petitioner bank by failing to hold a departmental enquiry has breached principles of natural justice and fair play. This appears to be the main sty of the impugned award. In addition, the reasoning adopted by the CGIT is as follows:-
(I) That except for absenteeism in the present instance, there are no other 'grave charges' levelled against the Respondent no. 1;
(II) In the context of failure on the part of the Respondent no. 1 to explain absence of over three and half years, the CGIT observed thus:-
"...Accordingly to me stay of 2nd Party in Japan for 3 years and 9 months is more than sufficient to consider that, he had reason to stay away from the employment. If at all, he might have been served with the charge sheet he might have got an opportunity to put these facts before the Inquiry Officer who was supposed to 9 (2006) 1 Supreme Court Cases 530 10/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 consider it as there was reason for 2nd Party to stay away from the job."
(III) The impugned award records the findings that the letter / notice dated 05.03.1994 was addressed by the Petitioner only to Ulhasnagar address despite full knowledge that the Respondent no.
1 was at the relevant time in Japan. The relevant observations are as follows:-
"......So lastly bank asked 2nd Party to report on duty by addressing letter dated 5th March, 1994 Ulhasnagar address asking his report on duty with to this explanation. It is a matter of record that he was in Japan at that time still that letter was written to him at Ulhasnagar by which he was asked to report on duty with explanation."
15] The Petitioner, at the very outset had placed reliance upon clause 15 of the bipartite settlement, in order to justify its action.
Such reliance was placed not only in the course of conciliation proceedings, but also in the response submitted in pursuance of the claim statement of the Respondent no.1 before the CGIT. The plea that the Petitioner's action was entirely consistent with clause 15 of the bipartite settlement, was specifically raised in paragraph 17 of the response / written statement. In fact at paragraph 14 of the impugned award the CGIT has very specifically noted this 11/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 contention / plea. However in the reasoning from paragraphs 16 to 31, there is absolutely no consideration of this plea / contention.
There is no discussion as to why the defence based upon clause 15 of the bipartite settlement has been rejected. The CGIT has neither addressed itself to the factual nor the legal position which clearly arose in the matter. This in my opinion, is sufficient to set aside the impugned award.
16] Clause 15 of the bipartite settlement, reads as under:
"15. Voluntary Cessation of Employment by the Employees Where an employee has not submitted any application for leave and absents himself from work for a period of 90 or more consecutive days without or beyond any leave to his credit or absents himself for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended or where there is satisfactory evidence that he has taken up employment in India or the management is satisfied that he has no present intention of joining duties, the management may at any time thereafter give a notice to the employee's last known address calling upon the employee to report for duty within 30 days of the notice, stating inter alia, the grounds for the management coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the 12/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 management that he has not taken up another employment or avocation and that he has no 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 event 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 take any action under the law or rules of service."
In case of an employee who has gone abroad, and has not submitted any application for leave and absents himself for a period of 150; or more consecutive days without or beyond any leave to his credit or absents himself for 150 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended and where the management has reasons to believe that he has no intention of joining duties, the management may at any time thereafter give a notice to the employee's last known address calling upon the employee to report for duty within 30 days of the notice. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the management, the employee will be deemed to have voluntarily retired from the Bank's service on the expiry of the same notice. In the event 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 13/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 without prejudice to the Bank's right to take any action under the law or rules of service."
17] There is no serious dispute and in any case there is ample material on record both in form of oral as well as documentary evidence which establishes that Respondent no. 1 having gone abroad (Japan) absented himself for a period of more than 150 consecutive days beyond the leave period originally sanctioned or subsequently extended. The correspondence on record establishes that applications made by the Respondent no. 1 for extension of leave had been rejected or at least not granted. Ms Doshi accepted the position that there is nothing either in the bipartite settlement or in the leave rules which provides for deemed grant of leave. The material on record also bears out that the Petitioner by notice dated 05.03.1994 called upon the Respondent no. 1 to report for duty within 30 days. The Respondent no. 1 in his deposition has clearly admitted the receipt of this notice by him at Japan. The Respondent no. 1 neither reported for duty during the said period nor bothered to even furnish any explanation. In such circumstances, there was no reason to fault the Petitioner having reasons to believe that the Respondent no. 1 had no intention of joining duties. Clause 15 in terms provides that unless an employee reports for duty within 30 days of the notice or unless he gives an explanation for his absence 14/25 ::: Downloaded on - 23/12/2013 20:30:56 ::: skc WP-86-2009 to the satisfaction of the management, the employee will be deemed to have voluntarily retired from the bank service on the expiry of the same notice. Clearly therefore the action of the bank was in accordance with clause 15 of bipartite settlement. I see no force in the submissions of Ms. Doshi that clause 15 was either not attracted or not complied with in the facts and circumstances of the present case.
18] In a situation where clause 15 of the bipartite settlement, is attracted, there is no necessity of holding a departmental enquiry.
Further in such a situation it cannot be said that there is any breach of principles of natural justice and fair play. The material on record establishes that the Petitioner upon rejection of application for extension of leave called upon the Respondent no. 1 to report for duties. Thereafter specific notice dated 05.03.1994 was served upon the Respondent no. 1 affording him opportunity to either report for duties or to at least submit a valid explanation for the absence.
The Respondent no. 1 chose not to avail all such opportunities. The Respondent no. 1 has reacted against the notice dated 24.05.1994 only after three years by way of preferring the appeal to the appellate authority. In the circumstances, it can hardly be said that there was failure to comply with the principles of natural justice and 15/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 fair play.
19] In my opinion, the case is covered by the ruling of the Supreme Court in the case of Syndicate Bank (supra) as also subsequent rulings where the legal position has been reiterated.
20] In the case of Syndicate Bank (supra) in the context of very similar provision providing for deemed voluntarily retirement on account of inordinate and unexplained absence, the Supreme Court observed thus :
"14. In the present case action was taken by the Bank under Clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from the work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon to report for duty within 30 days of the notice stating herein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period Bank passed order that Dayananda had voluntarily retired from the service of the Bank.
15. Now what are the requirements of principles of natural justice, which are required to be observed. These are : (1) workman should know the nature of the complaint or accusation; (2) an opportunity to state his 16/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 case; and (3) the management should act in good faith which means that the action of the management should be fair, reasonable and just. All these three criteria have been fully met in the present case. Principles of natural justice are inbuilt in Clause 16 of the Bipartite Settlement. ..........Considering the conduct of Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with the Bank.
16. It is no point laying stress on the principles of natural justice without understanding their scope or real meaning.
17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that 17/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.
18. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution of India to set aside the award."
21] In the case of Viveka Nand Sethi vs. Chairman, J & K Bank Ltd. & Ors.10 the Supreme Court observed thus:-
"15. The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either: (1) report for duties within thirty days; (2) give his explanation for his absence satisfying the management that he has not taken any employment or 10 (2005) 5 Supreme Court Cases 337 18/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his duties within thirty days or fails to file a satisfactory explanation, as referred to herein before, that the legal fiction shall come into force. In the instant case except for asking for grant of medical leave, he did not submit any explanation for his absence satisfying the management that he has not taken up any other employment or avocation and that he had no intention of not joining his duties.
16. In the aforementioned fact situation we do not see any reason as to why the Bank could not arrive at a satisfaction that the workman had no intention to join his duties. It is interesting to note that though the said order was passed on 17-5-1984, a representation to the Bank was made by the workman to reconsider the said decision after a period of 3 years and 2 months by a letter dated 31-7-1987.
17. Yet again a dispute was sought to be raised by issuance of a legal notice on the Bank only on 6-4-1989.
18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. .......
19. We cannot accept the submission of Mr Mathur that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the Bank from invoking clause 2 of the bipartite settlement.
20. It may be true that in a case of this nature, the 19/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.
21. Clause 2 of the bipartite settlement raises a legal fiction, which is of wide import. Once the action on the part of the employer is found to be fair, the court in view of such legal fiction would call upon the workman to prove the contra. It will bear repetition to state that the only defence which came to be raised by the workman was non-applicability of the bipartite settlement. The notice dated 31-12-1983 refers to the said settlement by necessary implication, as on the failure of the workman to resume his duties by 15-1- 1984, it was stated that he would be deemed to have been discharged from the services of the Bank.
............... The workman ex facie appears to have accepted the said order as for a long period he maintained silence. Had he been interested in the Bank's services, it was expected of him to resume his duties and/or file proper application for grant of medical leave with a valid medical certificate.
22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of 20/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash3.] The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab v. Jagir Singh4 and Karnataka SRTC v. S.G. Kotturappa5.) 22] In the case of Punjab & Sind Bank vs. Sakattar Singh 11, the Supreme Court at paragraph 4 observed thus:
"Under this rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job anymore and will stand retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto."
23] In the case of Regional Manager, Central Bank of India vs. Vijay Krishna Neema & Ors.12, the Supreme Court observed that principles of natural justice do not operate irrespective of statutory provisions. Further the Supreme Court observed that validity of clause 16 of Shastri Award / or provisions akin thereto 11 (2001) 1 SCC 214 12 (2009) 5 Supreme Court Cases 567 21/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 is no longer res integra. An employee may, in certain situations, abandon or deemed to have abandoned his job. What constitutes abandonment may be a matter of a statutory provision or agreement between employer and Union. Although absence without leave for a long time may constitute a grave misconduct on the part of the employee concerned, in view of clause 16 of Shastri Award, an employee can be treated to have ceased from employment.
24] In the light of the aforesaid clear rulings I am unable to uphold the validity of the impugned award. The impugned award is accordingly required to be set aside.
25] The finding that the Petitioner bank addressed notice dated 05.03.1994 to the Respondent no. 1 at his Ulhasnagar address despite full knowledge that the Respondent no. 1 at the relevant time in Japan, is totally perverse. There is material on record which establishes that notices were addressed both to the Ulhasnagar as well as the Japan address. The notice addressed to Ulhasnagar was returned undelivered. However the notice addressed at Japan was very much received by the Respondent no. 1. In fact the Respondent no. 1 in his deposition has stated 22/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 thus :
".....It is correct, I had received letter from the Bank dated 5th March'94. Address mentioned of Japan on Ex-17/pg-15 now shown to me is correct......"
26] The reasoning in the impugned award that the Respondent no. 1, apart from absenteeism was involved in no other grave misconduct and that therefore he deserved reinstatement, is also neither logical nor acceptable. The same is the position with the reasoning that the stay of the Respondent no. 1 in Japan for over three and half years by itself constitutes explanation for not reporting to duty. Such reasoning is totally fallacious and could not have been basis for making the impugned award and directing reinstatement of the Respondent no. 1 with continuity for the purposes of retiral benefits.
27] Mr. Gopalkrishnan, laid particular emphasis upon deposition of the Respondent No. 1 (in cross) to emphasise that the reason for absence attempted to be belatedly furnished by the Respondent no. 1 before the Tribunal did not inspire any confidence. In the context of medical certificates in Japanense language furnished by the Respondent No. 1, he has deposed that he does not know the name, qualifications or even the 23/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 precise address of the doctor. He does not know the system of medicine followed by the said doctor. He does not have the prescriptions, medical purchase bills or any medical case papers with him. He said that he was suffering from ailments like back pain, chest pain, cold and fever. Mr. Gopalkrishnan, is right in his submission that this is hardly a satisfactory manner to explain absence of over three and half years. The explanation indeed does not inspire any confidence. However in the light of legal position in the context of clause 15 of the bipartite settlement, there is no necessity to advert to such evidence for the purposes of interference with the impugned award.
28] The rulings relied upon by Ms. Meena Doshi are also inapplicable to the facts and circumstances of the present case.
In Kamal Kishore Lakshman's case (supra) the Supreme Court held that disciplinary enquiry should normally be held before passing order of termination of service grounded on stigmatic allegations. There is no question of any stigma in the present case. In Pramod Kumar Gupta's case (supra) the Petitioner in the said case admittedly reported for duty well within the 30 days period from the notice which requiring him to report for duties.
The decision therefore is clearly distinguishable on facts. The case of Regional Manager, SBI (supra) concerns the scope of 24/25 ::: Downloaded on - 23/12/2013 20:30:57 ::: skc WP-86-2009 Section 25-G of the Industrial Disputes Act, 1947, which is again not the issue in the present case. The rulings are therefore inapplicable and in any case distinguishable. In contrast, the rulings of the Supreme Court in the case of Syndicate Bank (supra), J. & K. Bank Limited (supra) and Central Bank of India (supra) afford complete answer to the contentions raised by Ms. Doshi.
29] In the circumstances, the impugned award is liable to be quashed and set aside and the same is hereby quashed and set aside. Rule is accordingly made absolute in terms of prayer clause (a) of the petition. There shall however be no order as to costs.
(M. S. SONAK, J.) Chandka 25/25 ::: Downloaded on - 23/12/2013 20:30:57 :::