Karnataka High Court
The Assistant General Manager vs Sri E Manoharan on 29 March, 2022
Bench: S.Sujatha, Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
W.P. No. 1523/2021 (L-TER)
BETWEEN :
The Assistant General Manager
State Bank of India
Regional Business Office,
Kolar-563 101.
Earlier in industrial tribunal:
The General Manager (P)
State Bank of India, Head Office (ir)
Kempegowda road,
Bangalore - 560 009.
...Petitioner
(By Sri Raghavendra G. Gayathri, Adv.)
AND :
Sri E Manoharan
S/o Late Ethiraj
Aged about 58 years
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No.3422, Sait Compound
Bangarpet - 563 114.
...Respondent
(By Sri V.R. Datar, Adv.)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO SET ASIDE THE ORDER DATED
16.06.2020 PASSED BY THE HON'BLE CENTRAL
GOVERNMENT INDUSTRAIL TRIBUNAL CUM LABOUR
COURT IN ID No.01/2016 VIDE ANNEURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, SHIVASHANKAR AMARANNAVAR J,
MADE THE FOLLOWING;
ORDER
This petition is filed seeking setting aside the order dated 16.06.2020 passed by the Central Government Industrial Tribunal cum Labour Court (for short `the Tribunal') in I.D. No. 1/2016 (Annexure - A).
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2. Heard the arguments of Sri. Raghavendra G. Gayatri, learned counsel for petitioner and Sri. V.R. Datar, learned counsel for respondent.
3. The facts leading to the filing of the present petition are that, the respondent while working as Clerk at KGF Branch of the petitioner - State Bank of India (for short `the Bank') remained unauthorizedly absent from 11.07.2012 and was issued notices dated 31.10.2012 and 31.01.2013 directing him to report for duty. Since the respondent did not report back for duty, the Bank passed an order dated 22.03.2013 treating him as voluntarily vacated from the service of the Bank. The respondent approached the Bank vide letter dated 29.04.2013 stating that he was not well from 11.07.2012 to 20.04.2013 and pleaded sorry for not replying to the letters issued by the Bank dated 31.10.2012 and 31.01.2013 and requested to -4- reinstate him into service of the Bank. In view of the said representation submitted to the Assistant General Manager clarification was sought from the Branch Manager by way of a letter dated 23.10.2013. Thereafter a letter dated 11.11.2013 was sent from the Branch Manager to the Assistant General Manager requesting to consider the case of the respondent under humanitarian ground. The respondent also gave an undertaking letter on 11.11.2013. The said representation was duly considered by the competent authority which was submitted to the Deputy General Manager and in note dated 13.12.2013 (Annexure-N) the request of the respondent was turned down. Aggrieved by the said decision respondent submitted an appeal to the Appellate Authority on 20.07.2015. Thereafter an endorsement came to be issued to the respondent on 17.08.2015 stating that there is no provision to file appeal. Being aggrieved the -5- respondent raised a dispute under Section 2-A of the Industrial Disputes Act, 1947 (for short `the Act') in I.D. No.1/2016. In the said I.D. No.1/2016 the petitioner Bank filed written statement. The Tribunal allowed the claim of the respondent and held that the orders of the Disciplinary Authority dated 22.03.2013 striking off his name from the rolls of the Bank is set aside and also directed the petitioner Bank to reinstate the workman to his original post with continuity of service and without backwages within 60 days of publication of the award. Petitioner being aggrieved by the said order has filed this petition.
4. The learned counsel for the petitioner would contend that the order of the Tribunal is illegal, arbitrary and without considering the bipartite settlement entered into between the Bank and the Unions. Clause 33 of the bipartite settlement -6- stipulates about the voluntary cessation of employment. It is his further submission that the Bank has strictly followed the provisions of the said bipartite settlement and issued the notices to the respondent meticulously and in the notice dated 31.10.2012 it was clearly stated by the Bank that the respondent remained absent from service from 11.07.2012 and he was asked to report for duty within 30 days from the date of notice and furnish explanation for his absence. The respondent failed to respond to the same. Thereafter one more notice was issued on 31.01.2013 which was also duly served on him. Since the respondent remained absent and failed to respond, an order dated 22.03.2013 came to be passed by striking off the name of the petitioner from the rolls of the establishment. Only thereafter the workman woke up and submitted his first representation dated 29.04.2013 stating that he was not well from -7- 11.07.2012 to 20.04.2013. The statement of the respondent is an after thought and there were no grounds to consider the representation of the respondent. The order of the Tribunal is contrary to the bipartite settlement entered into between the parties and without recording valid reasons. The learned counsel for the petitioner has placed reliance on the following decisions:
a) Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association and another, (2000) 5 SCC 65
b) Punjab and Sind Bank and others Vs. Sakattar Singh, (2001) 1 SCC 214
c) Vivekanand Sethi Vs. Chairman, J & K Bank Ltd., and others, (2005) 5 SCC 337
5. The learned counsel for the respondent would contend that the findings of facts recorded by the -8- Tribunal is neither illegal nor perverse. The order passed by the Disciplinary Authority is patently unconstitutional and passed without following the principles of natural justice. He contends that such termination of service of a workman under the guise of voluntary cessation of work inviting striking off the name of such workman from the muster rolls in terms of paragraph 33(ii) of the bipartite settlement which affects his livelihood and thereby his right to life. The respondent is therefore challenging the said clause/paragraph 33(ii) of the bipartite settlement.
He contends that voluntarily vacating the employment in terms of clause 33 of the bipartite settlement was replied by the respondent by his letter dated 29.04.2013 (Anneuxre J) disclosing his shock and surprise at the sudden termination of employment, offered an explanation for absence and to reconsider the order of termination which is camouflaged as -9- voluntary cessation of employment. The said order of termination attracts penal consequences as it is not a simple discharge but is a punishment for misconduct. The said clause does not make any provision for treating the absence from duty for more than 90 days as a misconduct and affords no reasonable opportunity to defend which is part of principles of natural justice. He contends that the respondent has not been given any terminal benefits including his provident fund, pension and gratuity after 27 years of service which is more harsh than the order of dismissal. He contends that recently Indian Banks Association and the workmen union of the Bank have entered into bipartite settlement dated 11.11.2020 wherein Clause 42 reads as under:
42. Voluntary Cessation:
In partial modification of clause 33 of Settlement dated 2nd June, 2005,
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employees who have ceased to be in service of the Bank under voluntary cessation shall be eligible for PF, gratuity, Pension and Leave encashment benefits, if otherwise eligible.
6. The learned counsel further contends that in terms of clause 42 of the said bipartite settlement, the respondent ought to have been entitled to the terminal benefits i.e. provident fund, gratuity, pension and leave encashment benefits. It is his further submission that it can be seen from Annexure N that the petitioner Bank wanted to continue the services of the respondent in terms of the strong recommendation by the Assistant General Manager either by a settlement or in terms of an order or award of the Tribunal after adjudication. Therefore now the Tribunal has passed the award for reinstatement. Therefore, the petitioners are estopped
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from challenging the order/award of the Tribunal. He placed reliance on the following decision.
a) L. Robert D'Souza Vs. Executive Engineer, Southern Railway and another, 1982 (I) LLJ
330.
7. The respondent remained absent for duty from 11.07.2012. The petitioner - Bank issued notice dated 31.10.2012 to the respondent as he remained absent for a period of 90 days without prior sanction from the competent authority and called upon him to report for work within 30 days from the date of notice. The notice sent by registered post came to be served on the respondent. The respondent did not join for duty within a period of 30 days nor gave any explanation for his absence. Thereafter the petitioner Bank issued another notice dated 31.01.2013 to the respondent calling upon him to report for work within
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30 days from the date of notice and to give explanation for his absence failing which he will be deemed to have voluntarily vacated the employment of the Bank on the expiry of the notice. The said notice which is sent by registered post has also been served on the respondent. The respondent did not join for duty nor gave any explanation for his absence. Therefore, the petitioner Bank passed order dated 23.02.2013 (Annexure-H) wherein it is stated that the respondent is deemed to have voluntarily vacated his employment with the Bank on the expiry of the notice dated 31.01.2013 issued to him for the second time and consequently his name has been struck off from the rolls of the establishment. The petitioner Bank has passed the said order by invoking clause 33 of the 8th bipartite settlement dated 02.06.2005 (hereinafter referred to as the bipartite settlement). The said clause 33 reads thus:
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''33. Voluntary Cessation of Employment
(i) When an employee absents himself from work for a period of 90 or more consecutive days without prior sanction for the Competent Authority or beyond the period of leave sanctioned originally including any extension thereof or when there is satisfactory evidence that he has taken up employment in India or outside, the management at any time thereafter may give a notice to the employee at his last known address as recorded with the Bank calling upon him to report for work within 30 days of the date of notice. Unless the employee reports for work within 30 days of the notice or gives an explanation for his absence within the period of 30 days satisfying the management inter alia that he has not taken up another employment or avocation, the employee shall be given a further notice to report for work within 30 days of the notice failing which the employee will be deemed to have voluntarily vacated his employment on the expiry of the said notice and advised accordingly by registered post.
In the event of the employee submitting a satisfactory reply, he shall be permitted to report
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for work thereafter within 30 days from the date of expiry of the aforesaid notice without prejudice to the bank's right to take any action under the law or rules/conditions of service.
If the employee fails to report for work within this 30 days period, then he shall be given a final notice to report for work within 30 days of this notice failing which the employee will be deemed to have voluntarily vacated his employment on the expiry of the said notice and advised accordingly by registered post.
(ii) If an employee again absents himself for the second time within a period of 30 days without submitting any application and obtaining sanction thereof, after reporting for duty in response to the first notice given after 90 days of absence or within the 30 days period granted to him for reporting to work on his submitting a satisfactory reply to the first notice, a further notice shall be given after 30 days of such absence giving him 30 days time to report. If he fails to report for work or reports for work in response to the notice but absents himself a third time from work within a period of 30 days without prior sanction, his name shall be struck off
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from the rolls of the establishment after 30 days of such absence under intimation to him by registered post deeming that he has voluntarily vacated his appointment.
(iii) Any notice under this clause shall be in a language understood by the employee concerned. The notice shall be sent to him by registered post with acknowledgement due. Where the notice under this clause is sent to the employee by registered post acknowledgement due at the last recorded address communicated in writing by the employee and acknowledged by the bank, the same shall be deemed as good and proper service."
8. The two notices have been issued as per the said clause 33 to the respondent. The respondent neither joined duty nor gave any satisfactory reply and therefore order has been passed as per Anneuxre H as per the above said clause 33. The learned counsel for the respondent contended that the petitioner Bank ought to have held an enquiry before passing of the said order Annexure H. As the
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respondent has not given any explanation for his absence to duty, there is no question of holding any enquiry. If the respondent had submitted his explanation which if not acceptable to the petitioner Bank then there ought to have been an enquiry in that regard.
9. The Hon'ble Apex Court in the case of Vivekananda Sethi, supra, has held thus:
"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 estoppel will apply. [See Gurjeewan Garewal (Dr.) vs. Dr. Sumitra Dash.]. 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 Singh and Karnataka SRTC v. S.G. Koturappa.)
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10. The Hon'ble Apex Court while dealing with a similar case in the case of Syndicate Bank, supra, has held that it was not necessary for the Bank to hold any enquiry before passing the order. Relevant paragraph reads thus:
"18. The Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda had 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 notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from
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duty and did not report for duty within 30 days the notice as required in Clause 16 of the Bipartite Settlement".
11. In the case on hand the respondent has not offered any explanation for his absence from duty and did not join for duty within 30 days of notice as required under Clause - 33 of the bipartite settlement.
12. In the order - Annexure H it is not only stated that the respondent voluntarily vacated his employment with the Bank after expiry of the notice dated 31.01.2013 but has also passed an order stating that consequently his name being struck off from the rolls of the establishment and he is also liable to pay the Bank one month's pay and allowances in lieu of notice. The learned counsel for the respondent argued that striking of the name from the rolls of the establishment amounts to
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retrenchment as defined under Section 2(oo) of the I.D. Act and placed reliance on the decision of the Hon'ble Apex Court in the case of L. Robert D'Souza, supra, wherein it is held as under:
"6. As we are not prepared to examine the contention over again, the submission of Mr. Francis that 'retrenchment' contemplates some overt act on the part of the employer, that it inheres the principle of last come, first go which again requires an overt act on the part of the employer; that when retrenched workmen and required to be re-employed, first option for re-employment has to be given to the retrenched workmen, which necessitates some overt act on the part of the employer, would be beside the point and of no relevance and significance. The reference to Rules 76, 77 and 78 of the Industrial Disputes (Central Rules), 1957, does not advance his case a step further. The definition of expression 'retrenchment' in s. 2(oo) is so clear and unambiguous that no external aids are necessary for its proper construction.
Therefore, we adopt as binding the well settled
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position in law that if termination of service of a workman is brought about for any reason whatsoever, it would be retrenchment except if the case falls within any of the excepted categories, i.e., (i) termination by way of punishment inflicted pursuant to disciplinary action; (ii) voluntary retirement of the work- man; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (iv) termination of the service on the ground of continued ill- health. Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in s. 2(oo). It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment, as held by this Court in Delhi Cloth & General Mills Ltd. Case, (supra)".
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13. It is his further submission that clause 33(i) and (ii) of the bipartite settlement does not provide for striking of name of the workman from the rolls of the employer. On a plain reading of the said clause 33 of the bipartite settlement it is clear that it does not provide for striking of the name of the workman from the rolls of the employer. Therefore, the Tribunal has rightly set aside the order of the Disciplinary Authority dated 22.03.2013 striking off the name of the respondent from the rolls of the Bank.
14. The next question that arises for our consideration is, whether the respondent is entitled for service benefits like provident fund, gratuity, pension and leave encashment benefits in view of voluntary cessation as per Annexure H. The Hon'ble Apex Court while considering similar clause to that of clause 33 of the bipartite settlement in Syndicate Bank, supra,
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held that the effect of passing order under clause 33 of the cessation from service is held as voluntary retirement from service of the Bank in paragraph No. 18 which is extracted herein above.
15. The Hon'ble Apex court in the case of Vivekananda Sethi, supra, has considered clause 2 similar to that of clause 33 of the bipartite settlement and has held thus:
"4. A bipartite settlement was entered into by and between the management of 58 Banks including the Appellant-Bank herein and their workmen; clause 2 whereof is as under :
"2. Voluntary Cessation of employment by the employees.-Whereas 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
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period of leave originally sanctioned or subsequently extended and where there is satisfactory evidence that he has taken up employment in India and 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 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
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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."
"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 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 hereinbefore, that the legal fiction shall come into force. In the instant case except 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".
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"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. ... ..."
16. Learned counsel for the respondent has taken us through the 11th bipartite settlement dated 11.11.2020 wherein in clause 42, clause 33 of the settlement dated 02.06.2005 has been partially modified to the effect that the employee who ceases to be in services of the Bank under voluntary cessation shall be eligible for provident fund, gratuity, pension and leave encashment benefits if otherwise eligible and effect is given to the same from 01.11.2020. Even though the order of voluntarily vacating the employment by the respondent is passed on 22.03.2013 the said clause 42 can be read into clause 33 as the respondent had put in 27 years of unblemished service and the litigation was pending.
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17. The Tribunal taking into consideration the report of the Branch Manager on the representation of the respondent dated 29.04.2013 which is forwarded by the Disciplinary Authority/Assistant General Manager which is favourable to the respondent for reinstatement has directed the petitioner to reinstate the workman to his original post with continuity of service and without back wages within 60 days of the publication of the above order. The respondent did not make any representation during the period of notice dated 31.01.2013 explaining the circumstances under which he has remained absent. The respondent has, subsequent to the order of his voluntarily vacating the employment (Annexure H), filed representation dated 29.04.2013 assigning reasons for his absence to duty. The said representation is not made during the period of notice dated 31.03.2013. The bipartite settlement does not provide for considering any representation
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filed subsequent to the order Annexure H. The Tribunal is swayed away by the report of the Branch Manager on the representation dated 29.04.2013 of the respondent at the instance of the Assistant General Manager. When the bipartite settlement does not provide for reinstatement, the Tribunal ought not to have ventured to order for reinstatement of the workman to his original post. Therefore, the said order of the Tribunal requires to be set aside.
For the aforesaid reasons, we proceed to pass the following;
ORDER i] Writ petition is allowed in part.
ii] The order of the Central Government Industrial Tribunal-Cum-Labour Court dated 16.06.2020 impugned herein is modified.
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iii] The directions issued by the Tribunal to the petitioner - bank to reinstate the respondent - workman to his original post with continuity of service and without back wages within 60 days of publication of the award is set aside. iv] The order of the Tribunal insofar as setting aside the order dated 22.03.2013 striking off the name of the respondent from the Rolls of the Bank vide Ex.W-1/Ex.M-4 is confirmed. v] However, the bank is directed to consider the case of the respondent - workman for the benefits of the PF, Gratuity, Pension and Leave Encashment, if otherwise eligible. vi] Such decision shall be taken by the petitioner -
bank having regard to the 27 years of unblemished service rendered by the respondent - workman and the representation dated 29.04.2013 submitted by the workman
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along with the medical report as well as Annexure-N dated 13.12.2013.
vii] Such exercise shall be made by the petitioner -
bank in an expedite manner in any event, not later than twelve weeks from the date of the receipt of certified copy of the order. viii] All the pending I.As stand disposed of accordingly.
Sd/-
JUDGE Sd/-
JUDGE LRS.