A. Muthu vs Indian Overseas Bank

Bakthavatsalam, J.—The prayer in the Writ Petiton is as follows:

...to issue appropriate Writs, Orders or Directions and in particular, issue a Writ in the nature of Certiorarified Mandamus after calling for the concerned records from the file of the Second Respondent in Ref. No. IRD/184/121 quash the order dated 14.7.1993 and consequently direct the Respondents to reinstate the Petitioner as Messenger with effect from 14.7.1993 with all conequential benefits, award costs....

The facts are: The Petitioner was a Messenger in Indian Overseas Bank, Karaikudi Branch and he had absented himself from duty. It seems the bank issued notice to the petitiner directing him to join duty within 30 days from the date of that letter, failing which it shall be taken that he would be voluntarily retired from the bank''s services. On the ground that they have not received any communication from the Petitioner regarding his rejoining duty and did he report ?for duty within the stipulated period, the impugned order has been passed by the bank.

The Petitioner alleges in the affidavit that as soon as the Petitioner received a letter on 14.6.1993, he sent a letter on 5.7.1993 under Certificate of Posting, statig that he was unwell and that he would be reporting for duty at the Karaikudi branch on 14.7.1993. The Petitioner further aleges that accordingly, on 14.7.1993, he went and reported for work and on that date, to had stitched vouchers and also initialled them. An allegation is made against the Branch Manager that his initials put in the vouchers by the Petitioner were cancelled. In the meanwhile, the impugned order has been passed. The Petitioner alleges that in spite of his reporting for duty, the Respondent bank are not permitting him to work and are illegally contending that he had voluntarily abandoned his duty. The Petitioner alleges that paragrah-17 of the fifth bipartite settlement, is not applicable, to the facts of this case since he was under medical leave duly certified by the doctors. The Petitioner alleges the action of the Respondent bank is arbitrary and violative of Article 14 of the Contitution and paragraph-17 of the settlement dispenses with the Respondents obligation to take apropriate disciplinary action only in cases where there is wilful absent from work. The Petitioner further alleges the Respondent bank ought to have issued a show-cause notice caleing for explanation and in any event, the action of the second Respondent is mala fide and that even as per the notice, the last date on which the Petitioner ought to have reported for work was only on 13.7.1993 and the notice itself was received by the Petitioner on 19.6.1993, and therefore the Petitioner was well within 30 days when he reported for work on 14.7.1993. Though the Petitioner alleges that paragraph-17 of the fifth bipartite settlement is provided for automatic termination of services of an employee on his own accord, inasmuch as it is violative of Article 14 of the Costitution, the same cannot be pressed into service.

A counter-affidavit has been filed by the Respondent/bank in which it is stated that the Petitioner is a workman covered by Section 2(s) of the Inustrial Disputes Act and he can very well challenge the order of termination by raising an industrial dispute so that the management will be able to justify the termination by leading, satisfactory evidence before the industiral tribunal. It is stated that the Petitioner has not exhausted the alternative remedy under the Industrial Disputes Act and as such, the Writ Petition shall not be entertained. It is also claimed in the petition that the Petitioner joined the service in the year 1977 as a Messenger and is presently wrking in Karaikudi branch and the Petitioner was in the habit of absenting himslf very often. A reference to the past conduct of the Petitioner was made in para-4.1 do not think it is necessary to enter into the merits for the purposes of deciding the case before me.

It seems the Petitioner absented himself from 13.2.1993 without any information and as there was no improvement in his leave record even after cautioning and stopping of annual increment and as that his unauthorised absence exceeed 90 days, the bank had no other alternative but to invoke Clause XVII of the bipartite Settlement and the notice has been issued on 14.6.1993 and as he did not report for duty within 30 days, i.e. by 13.7.1993, it was deemed that he was voluntarily retired from the services of the bank with effect from 14.7.1993. In para-8 of the counter affidavit, the bank has narrated how the Petitioner was absenting himself and how his leare record was unsatisfactory. It is stated in the counter affidavit that the Petitioner was absenting for five months, i.e., from 13.2.1993 to 13.7.1993 and he had not replied to the notice of voluntary retirement dated 14.6.1993. It is also stated that the allegtion he had applied or medical leave is false. With regard to the allegation made in the affidavit that the Petitioner had sent a letter on 5.7.1993 by Certificte of Posting, the Respondent bank denies the same in the counter affidavit stating that the Petitioner put to strict proof of the same. It is seen from the counter-affidavit that is the Petitioner had gone to the Karaikudi branch on 14.7.993 and the branch immediately contacted the Central Office over phone who in turn advised him that the member had already retired from the bank''s service on his own accord with effect from 13.7.1993 and therefore, he could not report for duty on that date. It is claimed in the counter- affidavit that in the absence of any information on his long and unauthorised absence, Clause-XVII of the fifth Bipartite settlement alone applies which has been brought out by a Memorandum of Settlement on 10.4.1989 and this settlement dispensed with the other procedure of disciplinary action.

Mr. K. Chandru, Learned Counsel for the Petitioner contends that a reerence to Clause-17 of the Bipartite Agreement shows that the term, "within 30 days of the date of notice" which occurs in the clause should be read as the date of receipt of the notice and if it is be read in such a way that the clause can be saved from an attack of violation of Article 14 of the Constitution. Otherwise, if a literal meaning is given to the said clause, that clause by itself may offend the Article 14 of the Constitution as it offends the principles of natural justice. Learned Counsel has produced before me the cover in which the notice has been sent by the bank i.e., the notice dated 14.6.1993 and it is seen that the cover was posted on 14.6.1993 and has been received by the Petitioner on 19.6.1993 and as the Petitioner reported for duty on 14.7.1993, Clause 17 of the Bipartite settlement has been complied with and as such, no question of voluntary cessation of employment arises on the facts and circumstances of the case. That apart, Learned Counsel Mr. Chandru contends that the date of notice should be read as the date of the knowledge of the notice. Learned Counsel further states that within 30 days, the Petitioner already sent a reply to the bank by a Certificate of Posting on 5.7.1993. Learned Counsel refers to many decisions of the Supreme Court and this Court to contend that the principles of natural justice would require that as per Clause 17-A of the bipartite settlement, the Petitioner has reported for duty well within 30 days from the date of receipt of the notice and as such, the impugned order has got to be set aside. Learned Counsel relies upon a decision reported in Sita Ram and Another Vs. State, , and also a decision reported in the W.S. Insulators of India Limited v. Industrial Tribunal, Madras 51 F.J.R. 34, by a Division Bench of this Court for a proposition that the Certificate of Posting can be accepted as a piece of evidence of forwarding a letter to the addressee. Learned Counsel also relies upon a decision of a Division Bench of the Bombay High Court in Rambhuwal Thakar Prasad Vs. Phoenix Mills, and a case reported in D.K. Yadav Vs. J.M.A. Industries Ltd., , for a proposition that there should be fair play in any action taken by the employer. Learned Counsel contends that the bank, being a natinalised bank, should adopt fair play in any action and should have given a notice to the Petitioner before passing the impugned order. Though Learned Counsel raised a question whether is absence without leave would amount to misconduct, I am not inclined to entertain that question for the purpose of deciding the issue now m question. Learned Counsel further contended that even assuming the Clause 17 is one of the clauses in the fifth Bipartite agreement, as pointed out in the decision of the Supreme Court in AIR India Vs. Nergesh Meerza and Others, there cannot be any estoppel against fundamental rights even if it is stipulated in the agreement, when the same is arbitrary and illegal.

Mr. N.G.R. Prasad, Learned Counsel for the bank vehemently contends that the Bipartite agreement binds the parties and as such, this Court cannot read some words in between the lines of Clause-17-A and it has to be read as it is and if it is done so, the impugned order cannot be said to be illegal. Learned Counsel for the bank contends that the Petitioner has been habitually absenting himself and he has not improved his attitude in attending the bank and the past record as narrated in the counter-affidavit shows that the petitier has been absenting without taking leave. As such, Learned Counsel for the bank states that this Court sitting under Article 226 of the Constitution cannot grant any relief to the Petitioner and the Petitioner should be directed to approach the proper forum, viz., Industrial Disputes Tribunal for sorting out his grievances as it is a clean case of industrial dispute and the Petitioner as a workman comes under the definition of Industrial Disputes Act 1947.

I have considered the arguments of Learned Counsel Mr. K. Chandru for Petitioner and Mr. N.G.R. Prasad, Learned Counsel for Respondent-bank, and gone through the documents produced before this Court.

The short point that arises for consideration in this Writ Petition is, how to consider sub-Clause of Clause 17 of the fifth Bipartite settlement dated 10.4.1989.

For the purpose of deciding the case on hand, it is necessary to extract the Sub-clause (a) of Clause 17 which reads as follows:

CI. 17:Voluritary Cessation of employment by the employee: 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 or without any leave to his credit or beyond the period of leave sanctioned orginally/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 give 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 no 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 or 30 days 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 voluntary 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.

The above extract of C1ause 17-A clearly shows that a notice has to be served on the Petitioner at his last known address calling upon him to report for duty within 30 days of the date of notice and if 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 avocation and that he has no intention of not joining duties, the employee will be deemed to nave voluntarily retired from bank''s service on the expiry of the said notice. In my view, the date of notice has to be read as the date of receipt of the notice, otherwise, C1ause XVII-A will be liable to be struck down as violative of Article 14 of the Constitution. Applying the principles in the rulings to validate the clause in the agreement and if the clause is read as within 30 days from the date of the receipt of notice, the Petitioner cannot have any objection. It is well-settled that if a clause stipulated in an agreement is violative of Article 14 of the Constitution, it can be struck down and this principle is laid down in Air India v. Nargesh Meerza and Ors. l981 II L.L.J. 3l4 at page 334. That apart, the shifting now is to a broader notion of ''fairness'' or ''fair procedure'' in any administrative action, as laid down by the Supreme Court.

The Petitioner has alleged that he sent a letter on 5.7.1993 by Certificate of Posting and Mr. Chandru, the Learned Counsel for the Petitioner has produced before me the ''Certificate of Posting''. Though it has been denied by the Respondent bank in the counter-affidavit, I am of the view that it cannot be accepted in law. u/s 114 of the Indian Evidence Act, there is always a presumption that the posting in due course of a letter raises a presumption that it has reached the addressee. So, on the facts of this case, it has to be taken that the Petitioner''s allegation that he has sent a letter on 5.7.1993 has got to be accepted. It is not as if the Petitioner has kept quiet to the notice issued by the Respondent bank. That apart, on the facts of the case, it is seen that though the notice is dated 14,6.1993, it has been sent by registered post on 17.6.1993 and served upon the Petitioner on 19.6.1993 and the impugned order has been passed on 14.7.1993. So if it is taken that the date of receipt of the notice as 19.6.1993 and that the Petitioner has reported for the duty on 14.7.1993, then the Petitioner is well within the stipulated period of 30 days as per Clause XVII of the Bipartite settlement. As rightly pointed out by the Respondent-bank, it is not enough for the Petitioner to claim re- employment and that he must have given an explanation stating the reason for his absence. That may be so. But, so far as the impugned order is concerned, it has been passed only on the ground that the Petitioner has not reported for duty within 30 days from the date of notice of voluntary cessation of employment and as such, the impugned order has to be set aside.

This conclusion can be reached by applying the principle of ''reading down'' or re-casting the clause, in a limited situation. The Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress 1991 SC 101 at page 180 has held as follows:

It is thus clear that the doctrine of reading down or recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the Legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intention is of the Legislature from the object of the statute, the context in which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the Court to remake the statute. Its only duty is to strike it down and leave it to the Legislature if it so desires, to amend it. What is further, if the remaking of the statute by the Courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires an extensive additions and deletions. Not only it is no part of the Court''s duty to undertake such exercise, but it is beyond its jurisdiction to do so.

In my view, this is a case, where the term, ''date of the notice'' as extracted above, can be read as from the date of receipt of notice to save the clause from being struck down as it is violation of Article 14 of the Constitution of India. As I take the view that the Petitioner has reported for work within 30 days from the date of receipt of the notice it is open to the Respondent-bank to consider his explanation and arrive at a conclusion whether the same is satisfactory or not.

In the result, the impugned order is set aside. The Respondent bank is directed to permit the Petitioner to join duty, subject to the condition that the Petitioner satisfies the bank by furnishing an explanation setting out the reasons for his absence.

As the Petitioner is now continuing in the employment in view of the interim direction of this Court, it is for the Petitioner to offer an explanation setting out the reasons for his absence, within two weeks of the receipt of the copy of this order.