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Judgment
Alexander Thomas, J. - The petitioner herein was an employee of the 2nd respondent State Bank of Hyderabad, Ernakulam Branch. She had entered the service of the said respondent Bank on 6.2.1984 as Clerk-Typist at their Ernakulam Branch. While so, she had availed ordinary leave for the period from 25.4.1988 to 24.5.1988 and had proceeded on sick leave on half-pay for the period from 25.5.1988 to 3.8.1988 and had yet again availed extra ordinary leave on loss of pay for the period from 4.8.1988 to 21.2.1989. On 22.2.1989, she had reported for duty and from the next day onwards, viz., 23.2.1989 onwards, she had entered on maternity leave upto 22.5.1989. There is no dispute on either side that the petitioner was sanctioned leave for the afore-stated period commencing from 25.4.1988 upto 22.5.1989. Admittedly the petitioner had delivered her child in March, 1989. The petitioner claimed that she was unable to immediately join duty on expiry of the maternity leave on 22.5.1989 on the ground that she had undergone a major surgery in connection with the delivery. In this regard, she had applied for leave without allowances on medical grounds for the following periods:
23.5.1989 to 30.6.1989
1.7.1989 to 1.9.1989
2.9.189 to 1.11.1989
and till February, 1991.
It is also common ground that after the expiry of the sanctioned leave for the period upto 22.5.1989, the petitioner did not have any further leave to her credit as per the Leave Rules governing the field and that she was not sanctioned leave she had sought for, for the afore-stated period commencing from 23.5.1989 upto February 1991 and thereafter. It is also common ground that the petitioner was most of the time in Riyadh in Saudi Arabia at her husband''s place of employment during the afore-stated period after 22.5.1989 and that she had not informed the respondent Bank that she had gone to Riyadh to be with her husband for the afore-stated period and further that she had not obtained any prior permission from the respondent Bank authorities to go to the afore-stated foreign country before she had left her place of employment. The Bank proceeded to take action against her in accordance with the provisions contained in Clause 17 of the Bipartite Settlement that governs the field and also in terms of the provisions contained in Clause XVI of the respondent Bank''s Staff Circular issued in the 1984 in the matter of taking action for voluntary cession of employment by employees. Accordingly, the Bank had initially issued notice dated 7.3.1990 (which is discernible from page No. 27 of the Bank''s official files produced before the Industrial Tribunal) by registered post with A/D, wherein the respondent Bank has stated that the petitioner was absenting from duty unauthorisedly since 23.5.1989 and that she is accordingly, directed to report for duty within three days of the receipt of the said memorandum dated 7th March, 1990 and explain the reasons for her absence. Since the petitioner had not responded to this, the Bank had later issued Ext. M-3 memo dated 13.3.1990 by registered post with acknowledgement due pointing out the afore-stated aspects and directing her to report for duty within a period of 30 days of the date of the said notice and that on her failure to do so, it will be deemed that she has voluntarily retired from service on the expiry of the said notice dated 13.3.1990, etc. The said Ext.M-3 memo/notice 13.3.1990 has been issued by the Bank by taking recourse to the provisions contained in Clause 17 of the afore-stated Bipartite Settlement, which governs the field. The afore-stated memos/notices dated 7.3.1990 and dated 13.3.1990 though sent by registered post with A/D, were returned to the Bank with the endorsement that "the addressee has left India." Thereafter, the petitioner had never taken up the issue with the Bank and it appears that for the first time, she personally appeared before the 2nd respondent Branch Manager of the Bank at Ernakulam on 13.2.1991 expressing her willingness to report for duty and requesting that she must be permitted to rejoin duty. The 2nd respondent Manager instructed her that he has to get further directions and guidance from the head office and only then he can take necessary action on her request. The necessary facts regarding the action taken against the petitioner in accordance with Ext.M- 3 memo dated 13.3.1990 were published by the respondent Bank in leading daily, viz, Malayala Manorama, dated 16.2.1991 notifying that the Bank has taken necessary action in compliance with the requirements of the afore-stated bank circular and the Bipartite Settlement regarding the petitioner''s voluntary cessation of employment consequent on her not reporting for duty within 30 days from the date of receipt of Ext.M-3 notice, etc. According to the petitioner, since the petitioner did not know anything about the further steps that the Bank had taken after her reporting for duty before the Ernakulam Branch on 13.2.1991, she was constrained to submit another representation to the respondent Bank requesting them to permit her to rejoin duty subsequently, and this was admittedly done by her only after the lapse of about nine long years, on 17.1.2000. Since the Bank took the stand that she has already voluntarily ceased to be in the employment of the Bank by virtue of the operation of the afore-stated provisions, the petitioner raised a dispute regarding this, which was referred for consideration by the appropriate Government to the 1st respondent Central Government Industrial Tribunal cum Labour Court, Ernakulam. The afore-stated I.D. was initially taken on the file of the Labour Court, Ernakulam as I.D. No. 4/2002 and on the formation of the 1st respondent Central Government Industrial Tribunal cum Labour Court, Ernakulam, the I.D. was transferred to the file of the 1st respondent Tribunal and re-numbered as I.D. No. 325/2006. Prior to the reference of the I.D. conciliation proceedings were held, in which the stand of the Bank regarding the issuance of Ext.M-3 dated 13.3.1990 and the consequential proceedings dated 30.4.1990 was brought to the notice of the conciliation officer. The afore-stated proceedings dated 30.4.1990 has been produced as Ext.P-1 herein, in which, reference is made to Ext.M-3 memo dated 13.3.1990. It is after the failure of the conciliation that the matter was referred for adjudication by the Tribunal as an Industrial Dispute, as afore-stated. Ext.P-2 is the claim statement dated 25.8.2002 preferred by the petitioner workman before the Tribunal. Ext.P-3 is the written statement dated 23rd September, 2002 preferred by the respondent State Bank of Hyderabad. WW- 1 and WW-2 are the witnesses examined on behalf of the petitioner workman and Exts.W-1 to W-21 are the documents marked on her behalf. The Management had examined MW-1 as their witness and had produced Exts.M-1 to M-4 as documents on their behalf. After grant of reasonable opportunity to both sides, the 1st respondent Tribunal has passed the impugned Ext.P-4 award dated 24.1.2008, holding that the action of the Management in terminating the service of the petitioner-workman is legal and justified and that she is not entitled for any relief. It is this award at Ext.P-4 that is under challenge in this Writ Petition.
Heard both sides.
It is not in dispute that the petitioner workman was sanctioned leave in accordance with the rules for the period commencing from 25.4.1988 upto 22.5.1989. It is also not in dispute that the petitioner had delivered a child in March, 1989 and that her sanctioned maternity leave period was upto 22.5.1989. The petitioner had later made application seeking leave without allowances on medical grounds for the subsequent periods from 23.5.1989 upto February 1991 as indicated herein above. The petitioner has no case that leave was sanctioned to her by the respondent Bank for the afore-stated period commencing 23.5.1989 onwards. It has also come out in evidence based on the petitioner''s own admission that she was in Riyadh in Saudi Arabia at her husband''s place of employment during most of the time for the period from 23.5.1989 onwards. It has also come out in evidence based the petitioner''s evidence that as per the respondent State Bank of Hyderabad''s circular No. PER/Gr.V/196 dated 28.2.1989 (referred to in para 9 on page 8 of the impugned Ext.P-4 award) that an employee going abroad must seek prior permission from the Bank by furnishing address and that she had not complied with the requirements of such circular and that she had never intimated her change of address to the Bank. Initially the Bank had issued memo dated 7.3.1990 (as discernible from the official files produced by the respondent Bank before the Tribunal) notifying the petitioner about her absence from duty unauthorisedly since 23.5.1989 and directing her to report for duty within three days on receipt of the said memo and explain her reasons for her absence. The said memo dated 7.3.1990 has been sent by registered post with acknowledgement due and has been returned with the endorsement "Addressee has left India". Clause 17 of the Bipartite Settlement entered into between the employer banks concerned (including the respondent State Bank of Hyderabad) and the recognised unions of the employees and their workmen, as represented by the All India Banks'' Association and the National Confederation of Bank Employees, etc. reads as follows:
"17. Voluntary Cessation of Employment by the Employees
The earlier provisions relating to the voluntary cessation of employment by the employee in the earlier settlements shall stand substituted by the following:-
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 or 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 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 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 given (sic) 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 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.
b) When an employee goes abroad and absents himself for a period of 150 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 originally/subsequently or when there is a satisfactory evidence that he has taken up employment outside 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 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 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 form 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.
c). ... ..."
The bank had issued Ext.M-3 memo/notice dated 13.3.1990, which reads as follows:
''Date 13th March 1990
Branch Ernakulam
(Cochin)497
By Regd Post Ack Due
Memo
Smt. Meenakshy Subromony Iyer,
Lakshmi Nivas,
Machingal lane,
Trichur.
Re : Unauthorised Absence From Duty
It is observed that you are absenting from duty unauthorisedly since 23rd May 1989.
The above position is highly irregular and in contravention of the rules governing your service in the Bank. You are, therefore hereby advised to report for duty within thirty days of the date of this notice. If you fail to do so, you will be deemed to have voluntarily retired from service on the expiry of this notice, in which case you would also be liable to pay to the Bank, one month''s pay and allowances in lieu of the notice.
Yours faithfully,
Sd/- Branch Manager
cc
The Regional Manager,
Region I,
Zonal office,
Secunderabad.
- for information. Please refer our letter No. F.2/985 dated 7.3.90, addressed to the employee in this connection. The said registered letter has been returned with the endorsement - ""left India""- We shall await the outcome of the second notice and shall report to you the developments for your necessary action.
Sd/-
Branch Manager."
Subsequent to the issuance of Ext.M-3 memo dated 13.3.1990, the Bank had also issued consequential memo as per Ext.P-1 dated 30.4.1990. Thereafter, the respondent Bank has made newspaper publication regarding the action taken in accordance with the provisions contained in the afore stated Bank Staff Circular and the Bipartite Settlement by publishing the same in a leading daily, viz., Malayala Manorama dated 16.2.1991. It is the case of the petitioner that she had personally reported before the 2nd respondent Branch Manager, Ernakulam, on 13.2.1991 seeking permission to rejoin duty. Obviously the Branch Manager was then not competent to permit her to rejoin duty without getting orders from the head office or superiors, and the petitioner was instructed to contact later. It is thereafter that the newspaper publication has been effected on 16.2.1991. The petitioner has no case that she had sent any representation to the respondent Bank after 13.3.1991 requesting the Bank to permit her to report for duty or that resort should be made for disciplinary action for the alleged unauthorised absence, etc. After 13.2.1991, the petitioner, for the first time, has contacted the respondent Bank only after the lapse of about nine long years on 17.1.2000 by again requesting the Bank to permit her to rejoin duty, which was denied by the Bank, which resulted in the present Industrial Dispute.
The Industrial Tribunal, on a careful consideration of all the relevant aspects of the matter and the evidence adduced on record, came to the considered conclusion that the petitioner has clearly admitted in her evidence that she had gone to Riyadh in Saudi Arabia at her husband''s place of work during the relevant period after 23.5.1999 and that in spite of the strict rigour of the service rules, which require that an employee concerned should seek prior permission from the Bank before proceeding abroad, she had never sought such prior permission from the Bank to go abroad, etc. Accordingly, the Tribunal has come to the considered conclusion that there was no impropriety in the respondent Bank in sending the requisite notices like the one issued on 7.3.1990 and Ext.M-3 notice dated 13.3.1990, Ext.P-1 dated 30.4.1990, in the address furnished by her to the Bank and that the Bank cannot in any way be blamed for not sending those communications to the petitioner to Riyadh in Saudi Arabia. The only feeble contention raised by the petitioner before the Industrial Tribunal and before this Court was that Ext.W-9 memo dated 15.12.1988 was earlier issued by the 2nd respondent Branch Manager to the petitioner in her Riyadh address and therefore the respondent Bank should be imputed with the knowledge that she was in Riyadh and that therefore the non-issuance of the impugned notices including Ext.M-3 dated 13.3.1990 to her Riyadh address would be fatal and therefore there is no proper service of notice as contemplated in Clause 17 of the Bipartite Settlement, etc. True that due to the information conveyed by the petitioner some time in 1988 that she had gone to Riyadh, the 2nd respondent Branch Manager had then sent Ext.W-9 memo dated 15.12.1988 to the petitioner in the address at Riyadh. The action to be taken against the petitioner in terms of Clause 17 of the Bipartite Settlement and Clause XVI of the Bank Staff Circular is to be initiated not by the Branch Manager, but by the competent superior officers. The petitioner has admittedly never intimated the Bank officially that she was then in Riyadh continuously and that all official communications should be addressed to her only in her Riyadh address. There was no way for the superior officers to even remotely guess that after the issuance Ext.W-9 letter dated 12.5.1988 the petitioner was all along in Riyadh in the very same address and in no other place. Even during the relevant period since 23.5.1989 onwards, the petitioner had sent all her leave applications showing her address either at Trivandrum or in Thrissur. This aspect of the matter has been clearly admitted by the petitioner in her evidence. The address given by the petitioner to the head office is the one at Thrissur. Therefore, the competent superior officers of the Bank were legally obliged to send all such communications to the petitioner only in her Thrissur address and they cannot be blamed for not sending those communications to the petitioner to Riyadh. As the Industrial Tribunal rightly observes in the impugned Ext.P-4 award, there was no guarantee that the petitioner would not have blamed the Bank officials concerned, if they had chosen to send the communications to her Riyadh address and not in the Thrissur address. Therefore, the afore stated contention of the petitioner regarding non-service of notice for the action taken in accordance with the Bipartite Settlement and the Bank Staff Circular cannot be found to be in any way improper as far as the service of notice concerned. Going by the provisions in Clause 17 of the Bipartite Settlement as quoted above, and going by the admitted facts of the matter that the petitioner had absented herself from duty continuously for the period from 23.5.1989, without securing sanctioned leave thereof, this Court has no hesitation to come to the considered conclusion that the finding of the Industrial Tribunal that the afore stated provisions were rightly invoked by the Bank, cannot be said to be illegal or unreasonable in any manner.
The learned counsel for the petitioner has relied on the following rulings of this Court and the Apex Court, viz.;
(i) M/s. Lakshmi Precision Screws Ltd. v. Ram Bhagat reported Lab. I.C. 2968 (SC),
(ii) Union of India and Ors. D.S.Karekar and Ors. reported in 1998-II-LLJ 748 (SC),
(iii) Joy Xavier v. Madura Coats Ltd. reported in 2000(1) KLT 43 (D.B),
(iv) S.R. Alse v. Dy. G.M. Syndicate Bank, Hyderabad, reported in 1999-III-LLJ (Supp.) 1397, and
(v) Regional Manager, Bank of Boroda v. Anita Nandrajog reported in (2009) 9 SCC 462.
In the ruling in M/s. Lakshmi Precision Screws Ltd. v. Ram Bhagat reported Lab.I.C. 2968 (SC), the Apex Court dealt with a case where the Standing Orders of the employer company provided that in the case of unauthorised absence for 10 consecutive working days will entail in termination of the service of the incumbent and in that case on the 4th day of the unauthorised absence, a notice was issued to the employee and on the 12th day, he was removed from the rolls of the company. This was not held to be in accordance with the procedure prescribed as per the Standing Orders framed under the statutory provisions of the Industrial Employment and Standing Orders Act. In the facts of that case, as admitted by both sides in that case, the prescribed procedure for permitting action for unauthorised absence for ten consecutive days was clearly breached as the notice was issued immediately after the 4th day of the alleged unauthorised absence. In the instant case, the procedure prescribed in Clause 17 of the Bipartite Settlement has been meticulously followed by the respondent Bank. It has come out in evidence that the petitioner had submitted Ext.W-6 application dated 24.5.1989 requesting for leave for the period from 23.5.1989 to 30.6.1989, Ext.W-7 application dated 29.6.1989 for the period from 1.7.1989 to 1.9.1989 and Ext.W-8 application dated 29.8.1989 for the period from 2.9.1989 to 1.11.1989. The management has clearly and specifically pleaded in Ext.P-3 written objections that the aforesaid leave applications were never sanctioned by the Bank. Moreover, the management has also clearly stated therein that no leave applications whatsoever have ever been submitted by the petitioner for the period from 2.11.1989 onwards. These aspects have not been in any way controverted by the petitioner in the evidence. Moreover, at any rate, the petitioner has not been able establish that any leave application for the period from 2.11.1989 was ever properly submitted to the respondent Bank. Therefore, the period from 23.5.1989 would be more than the minimum period of 150 days envisaged in Clause 17(b) of the Bipartite Settlement and the period from 2.11.1989 onwards upto 13.3.1990 (date of issuance of Ext.M-3) comes to 130 days and would certainly satisfy the minimum requirement of 90 days envisaged in Clause 17(a) of the Bipartite Settlement. Therefore, the issuance of Ext.M-3 and the consequential orders passed thereon, including the newspaper publication effected thereafter, cannot be said to be in any way breach of the procedure prescribed as per the Bipartite Settlement and as reflected in the Bank Staff Circular concerned.
In D.S. Karekar''s case reported in 1998-II-LLJ-748 (SC), a charge sheet issued to the delinquent was returned with a postal endorsement, "not found" and it was held that the management should have made further efforts to serve the charge sheet on the delinquent personally through office peon or again by registered post, etc. In that case, a charge sheet should have been issued for proper commencement of a disciplinary enquiry, in which the delinquent should have been given a reasonable opportunity to meet the charges, etc. The fact situation in the present case is entirely different and nobody has a case that the Department had resorted to disciplinary proceedings by issuing a charge sheet. That apart, the charge sheet issued in D.S. Karekar''s case supra by the employer was returned with the postal endorsement, "not found". In the instant case, all the communications consistently being issued by the management of the respondent Bank were returned with the endorsement that "Addressee had left India". Moreover, it may be noted that in the case Punjab and Sind Bank and Ors. v. Sakattar Singh reported in (2001) 1 SCC 214, wherein the Apex Court had dealt with a similar case involving action for terminating the service of the employee concerned by virtue of similar provisions contained in the Bipartite Settlement. Therein, the Apex Court clearly held the action so taken is not a punishment for misconduct, but that it is a recognition of the hard realities of the situation and that such action does not result in violation of the principles of natural justice and that therefore no domestic enquiry is necessary. More discussion about the afore stated ruling in Punjab Sind Bank''s case supra will be made hereinafter. Therefore, in the light of these aspects, the legal principles laid down by the Apex Court in D.S. Karekar''s case have no application to the facts of the instant case.
In Joy Xaveir v. Madura Coats Ltd. reported in 2000 (1) KLT 43, the termination notice sent by the employer as per the provisions of the Certified Standing Orders was with postal endorsement, "addressee out of India - returned to sender". It was observed therein that the management had not made any attempt to adopt a different mode of service like publication of notice in the newspaper. In that case, the worker had remained absent from 18.6.1986 and he reported for duty only on 28.12.1986. The worker after reporting for duty on 28.12.1986 has also produced a medical certificate showing that he was under treatment from 18.6.1986 to 27.12.1986 in the Mental Hospital, Thrissur, as he was suffering from ''anxiety neurosis''. In the facts of the present case, Ext.M-3 notice dated 13.3.1990 was not the sole communication, which was returned to the management with the endorsement that the petitioner had left India. A series of communications issued by the Bank to the address of the petitioner in Thrissur as provided by her, were consistently returned with the endorsement that the petitioner had left India. No specific information was given by the petitioner requesting the Bank that the communications should have been issued to the foreign country concerned and not even the address in the foreign country was provided by the petitioner to the employer. On an evaluation of this case, it can be seen that the provisions contained in the Bipartite Settlement have been followed and moreover, unlike the facts in Joy Xavier''s case supra, newspaper publication was also effected on 16.2.1991. No version whatsoever is even projected by the petitioner either in the claim statement or in this Writ Petition as to what transpired from 14.2.1991 upto 17.1.2000, after she had subsequently reported for duty on 13.2.1991. It has more or less come out in evidence that during the period of unauthorised absence, the petitioner was most of the time in Riyadh in her husband''s place employment and therefore, it may not be far off the mark to infer that the petitioner must have been in the foreign country even during the period from February 1991 upto January, 2000. Therefore, this Court has no hesitation to hold that the facts of the present case are clearly distinguishable from the one dealt by this Court in Joy Xavier''s case supra.
In S.R. Alse v. Dy. G.M. Syndicate Bank, Hyderabad, reported in 1999-III-LLJ (Supp.) 1397, the Andra Pradesh High Court dealt with a case of termination of service on the ground of unauthorised absence for more than 90 days in accordance with the Bipartite Settlement and notice was returned to the sender with the postal endorsement "addressee left, returned to sender", etc. It was held therein that such notice alone is not sufficient notice to the employee, but that the management should have given further steps to give notice by other modes known to law. In the instant case, initially a notice was issued on 7.3.1990 directing the petitioner to report for duty within 3 days. It is thereafter, a notice, which complies with the requirement of Clause 17 of the Bipartite Settlement, was issued in terms of Ext.M-3 dated 13.3.1990. After the said notice was returned un-served, Ext.P-1 memo dated 30.4.1990 was issued to the petitioner by registered post, which was also returned with the same endorsement. It was later that the Bank had to satisfy their internal procedure for getting permission for publication of the termination notice in the newspaper and thereafter, the management has published the termination notice in a prominent daily on 16.2.1991. Even according to the petitioner, she had approached the Branch Manager on 13.2.1991. Even in para 6 of Ext.P-2 claim statement the petitioner has stated that when she wanted to rejoin duty she came to know that the management was contemplating publication of notice in the newspaper calling upon her to join duty within 30 days and in the event of noncompliance with such direction, she would be treated as having voluntarily retired from service as stipulated in the Bank Staff Circular, etc. Though the full correctness of the above averment of the petitioner has been controverted in para 6 of Ext.P-3 written objections filed by the management, the said averment of the petitioner clearly discloses that she was fully aware that the management was under the process of issuance of publication of notice of termination in a newspaper. Therefore, any ordinary prudent person would have certainly waited at least for about a week after 13.2.1991 to know the subsequent developments and in the absence of disclosure of such details, she could have easily contacted the superior officers and come to know of the actual position. The fact that the newspaper publication was effected on 16.2.1991, is not in any way disputed by the petitioner. Therefore the facts of this case are clearly distinguishable from the one dealt by the Andra Pradesh in the case S.R. Alse''s case reported in 1999-III-LLJ (Supp.) 1397.
In the case Syndicate bank v. General Secretary, Syndicate Bank Staff Association and Anr. reported in (2000) 5 SCC 65, the Apex Court dealt with a case where the bank employee had unauthorisedly absented himself from work for a period exceeding the prescribed limit of 90 days, and the bank, in terms of the Bipartite Settlement, served notice on him by registered post, requiring him to submit his explanation and to join work within the prescribed period of 30 days and that otherwise he would be deemed to have retired from service, etc. The notice sent to the employee was received back with the endorsement "refused". In such circumstances, it was held that the bank had rightly treated the employee to have voluntarily retried from service and that the termination of his service without holding departmental enquiry was not in any way violative of principles of natural justice. On an evaluation of the facts of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in Syndicate Bank''s case supra would be applicable in the instant case.
A three-judge Bench of the Apex Court in the ruling in Punjab and Sind Bank''s case reported in (2001) 1 SCC 214, dealt with a case of unauthorised absence of 90 days or more consecutive days beyond sanctioned period of leave and held that a similar action as in the instant case taken under Clause 16 of IV Bipartite Settlement, arrived at between the bank and the unions had permitted such course of action and it held that termination of service in such circumstances, in compliance with the provisions of the Bipartite Settlement cannot be said to be infliction of a punishment for misconduct and that such procedure is only a recognition of the realities of the situation and that it does not result in violation of principles of natural justice. Accordingly, it was held that no domestic enquiry is necessary in such cases. In that case, the employee proceeded on sanctioned leave for three days from 16.8.1983, but had remained absent unauthorisedly for a continuous period of 190 days. The bank had issued three letters to him directing him to rejoin duty. The bank had issued notice dated 12.3.1994 under Clause 16 of the Bipartite Settlement seeking explanation of the employee for his unauthorised absence. On 4.4.1994, the employee submitted joining report, stating that he had been suffering from eye ailment to the Branch Manager, who had not accepted the same. The bank then passed order of termination of service on 18.4.1994. The Supreme Court held that the High Court in that case had erred in holding that the order of termination of service was nullity for violation of natural justice and that the principles of natural justice were excluded in the applicability of Clause 16 of the Bipartite Settlement, etc. Reference to paragraphs 4 to 6 of the afore stated ruling in Punjab and Sind''s case supra would be profitable, which read as follows:
"4. A reading of clause XVI of IV bipartite settlement will make it clear that in the event an employee absents himself from duty for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended the management may, at any time thereafter, give a notice to the employee at the last known address calling upon him to report for duty within 30 days of notice stating, inter alia, the grounds for the management coming to the conclusion that the employee has no intention of joining duty and furnishing necessary evidence wherever relevant and unless the employee reports for duty within 30 days of the notice or 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 the duty, the employee will be deemed to have voluntarily retired from the bank''s service on the expiry of the time fixed in the said notice. In the event of the employee giving a satisfactory reply, he will be permitted to report for duty thereafter within 30 days from the expiry of the aforesaid notice without prejudice to the bank''s right to take any action under the law or rules of service. 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. The principles of natural justice cannot be examined in vacuum without reference to the fact-situation arising in the case. This rule has been incorporated in an agreement where representatives of employees'' unions were party. They also realised the futility of continuing with a situation when an employee without appropriate intimation to the management is playing truant.
If the respondent had submitted an explanation regarding his unauthorised absence or placed any material before the court that he did report for duty but was not allowed to join duty, inquiry may have been necessitated but not otherwise. In this case, the respondent employee had defaulted in not offering any explanation regarding his unauthorised absence from duty nor did he place any material to show that he reported for duty within 30 days of notice as required by clause XVI of IV bipartite settlement. Thus we think that the contention put forward on behalf of the respondent that he was suffering from serious eye ailment at the relevant time is difficult to accept. In the writ petition filed before the High Court the respondent had stated that in the year 1980 he had a serious eye ailment and he had been taking leave from the Bank off and on and he had taken leave from 16-8-1993 to 18-8-1993 to attend some urgent work which was duly sanctioned but he was struck by eye ailment and, therefore, he could not join his duty as is clear from the medical certificate issued to him. In reply thereto, the stand taken by the appellants is that the record of the respondent does not disclose that he had proceeded on leave on medical advice for an eye ailment at any time. Even in the present leave application submitted by him he had stated that he was proceeding on leave to attend some urgent work at Chandigarh while the medical certificate produced before the court shows that the same had been issued by a doctor at Amritsar. There is dispute as to when he made available this material. The stand of the appellants is that this material was also produced only after the order of termination had been made and in seeking a review of the said order. The respondent claimed that he had sent several communications regarding his illness or to extend his leave or to rejoin duty but there does not appear to be any record with the Bank nor is the respondent in a position to produce any proof of his having sent such letters. We do not also find any material on record to show that he had reported for duty within the period indicated in the notice issued in terms of clause 16 of IV bipartite settlement. In the circumstances, we find the High Court had proceeded on an erroneous basis of non-compliance with the principles of natural justice, whereas the true content of the principles of natural justice should have been borne in mind, particularly when there was an agreement between the parties as to the manner in which the situation should be dealt with and the consequence that would ensue thereof.
In the circumstances, we allow this appeal, set aside the order made by the High Court and dismiss the writ petition filed by the respondent. However, in the circumstances of the case, the parties are directed to bear their respective costs."
On consideration of the facts of the instant case, this Court is of the considered opinion that the wholesome legal principles discernible from the ruling of the Punjab and Sind''s case supra could be fittingly applied in the instant case.
The learned counsel for the petitioner strongly placed reliance on the ruling of the Apex Court in the case, Regional Manager, Bank of Baroda v. Anita Nandrajog reported in (2009) 9 SCC 462, especially para 12 thereof. In Anita Nandrajog''s case a two-Judge Bench of the Apex Court has dealt with a similar case of taking action under Clause 17 of the Bipartite Settlement. Therein the impugned action was taken by the employer, whereby the employment of the delinquent had come to an end in 1989 as per the impugned proceedings. The Apex Court held that in view of the provisions contained in Clause 17 of the Bipartite Settlement, the impugned action taken therein by the employer bank against the delinquent employee is legal and proper. However, strong reliance was placed by the employee therein on subsequent clarification of the V Bipartite Settlement, which was said to have come into force in January, 1990. The Apex Court held that since the impugned order of termination of service in that case was passed on 25.8.1989, the said amended provision, which had come into force only in January, 1990, will not be applicable, as the amended provision has only prospective effect and has no retrospective effect. However, in para 12 of Anita Nandrajog''s case supra the Apex Court has held as follows:
''12. Learned counsel for the appellant has relied on the subsequent clarification of the Fifth Bipartite Settlement which states:
"Voluntary cessation of service.- (1) Clause 17 of the 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 employees but the absence is unauthorised otherwise, the Bank should take action in terms of disciplinary procedure laid down in previous settlements and not in terms of Clause 17 of the Fifth Bipartite Settlement."
In our opinion the above clarification is in fact an amendment to the earlier Clause 17(b) and hence will have no retrospective effect in the absence of any express intention to that effect. The termination order was passed on 25-8-1989 whereas the above clarification was made in 1990 when the service of the respondent had already come to an end. Learned counsel for the respondent submitted that the clarification is retrospective in nature. We do not agree. In our opinion, we should not go by the nomenclature and we should see the substance of the matter. A clarification may in reality be an amendment, while an amendment may in reality be a clarification. It is not the nomenclature which matters but the real nature of the rule. In our opinion, the so called clarification of January 1990 was in fact an amendment to Clause 17(b) because it makes a major change to Clause 17(b). Hence in our opinion it has no retrospective effect.''
On this basis, it is contended by the learned counsel for the petitioner that the afore-stated amended provision of Clause 17 of the Bipartite Settlement mandates that Clause 17 will apply only in cases of desertion, i.e., where there is absence from duty without any intimation, and that if there is any intimation from the employee, but even if the absence is unauthorised otherwise, the bank could take action only in terms of the disciplinary procedure laid down in the previous settlement and not in terms of Clause 17 of the Fifth Bipartite Settlement for treating that the employee has deemed to have vacated the employment, etc.
On a reading of the afore-stated judgment, it can be seen that the Supreme Court has conclusively held that the new provision that was styled as a clarification to the Bipartite Settlement, amounts to an amendment of Clause 17 of the Bipartite Settlement and that it has effect from January, 1990. On this basis, the learned counsel for the petitioner herein would strongly urge that even for the alleged unauthorised absence from 23.5.1989, the petitioner had submitted leave applications and that though the leave applications were not sanctioned, it is only to be held that she had proceeded on such alleged unauthorised absence after due intimation of such absence to the employer Bank and that on this basis, it is further contended that the reliance placed by the employer bank on Clause 17 is bad in law, insofar as Ext.M-3 is issued on 13.3.1990, which is after the coming into force of the amended provisions in January, 1990. Accordingly, it is contended that in view of coming into force of the afore stated amended provision in January, 1990, the impugned action taken on 13.3.1990 cannot be legally justified in terms of Clause 17 (a) or and 17(b) and that the employer bank was under the mandatory and obligatory duty to take recourse to disciplinary action for the alleged unauthorised absence and failure to do, is illegal and ultra vires.
This contention has been urged on behalf of the petitioner for the first time only at the time of final hearing of the instant Writ Petition. Such a ground has not been urged by the petitioner either in the claim statement or at the time of final hearing before the Labour Court or at least as a ground in the memorandum of the instant Writ Petition. Faced with the situation, the learned counsel for the petitioner submits that at least the matter may be remitted to the Labour Court for consideration afresh on this limited aspect of the matter.
However, the learned counsel for the petitioner points out that the afore-stated judgment of the Apex Court in the case Regional Manager, Bank of Baroda v. Anita Nandrajog reported in (2009) 9 SCC 462 was pronounced only on 1.9.2009 and that even the Writ Petition was filed on 25.6.2009, which is long after the impugned Ext.P-4 award dated 24.10.2008. However, it is to be noted that as the amended provision is stated to have been made in January, 1990, it was for the petitioner to urge it as a ground before the Labour Court or at least could have urged in the Writ Petition. The learned counsel for the petitioner would then urge as an alternate plea that this Court may consider remand of the matter to the Labour Court for consideration of the above plea based on the amended provisions which has come into force on January, 1990. On this aspect, it is to be noted that the unauthorised absence of the petitioner from 23.5.1989, it has come out in evidence that the petitioner was on leave as per Exts.W-6 dated 24.5.1989, W-7 dated 29.6.1989 and W-8 dated 29.8.1989 seeking leave for the period from 23.5.1989 to 30.6.1989, 1.7.1989 to 1.9.1989 and 2.9.1989 to 1.11.1989 and those leave applications have not been sanctioned. Since Exts.W- 6, W-7 and W-8 also have not been disputed in any way by the Management, the unauthorised absence up to 1.11.1989 is with due intimation to the Management. However, as rightly pointed out by the learned Senior Counsel for the respondent-Bank, it has been clearly and cogently pleaded by the respondent-Bank in their written statement that no intimation or leave application whatsoever has been submitted by the petitioner to the bank at any point of time in respect of the unauthorised absence for the period from 1.11.1989 onwards. The petitioner employee has not in any way controverted this aspect of the matter either in the claim statement or in the evidence adduced before the Labour Court or at least in the Writ Petition. Therefore, it is to be held that unauthorised absence for the period commencing from 2.11.1989 is without any intimation. The period from 2.11.1989 to 13.3.1990 (date of issuance of Ext.M-3) is 130 days, which certainly fulfils the minimum requirement of 90 days in clause 17(a), even if does not comply with the minimum requirement of 150 days in clause 17(b) of the Bipartite Settlement. Therefore, the action taken as per Ext.M-3 notice dated 13.3.1990 cannot be said to be in any way in breach of clause 17(a) of the Bipartite Settlement. This Court has no hesitation to hold that as the unauthorised absence of the petitioner for the period from 2.11.1989 onwards has been without any due intimation to the respondent-Bank, the petitioner cannot seek in any way the benefit of the amended provision said to have been made in January, 1990 to the Bipartite Settlement as referred to in para 12 of the Apex Court ruling in Anita Nandrajog''s case (supra) reported in (2009) 9 SCC 462.
That apart, it is to be noted that even according to the petitioner she has reported for duty before the Branch Manager on 13.2.1991 and she was asked to wait for further orders. It is not disputed by the petitioner that newspaper publication has been effected by the bank on 16.2.1991. Thereafter, for the first time the petitioner has turned up before the bank authorities with a representation only on 17.1.2000 which is after lapse of almost 9 long years after her previous reporting before the branch Manager on 13.2.1991. No explanation whatsoever has been given by the petitioner either in the claim statement or in the evidence or in this Writ Petition as to what prevented her from at least communicating or contacting any of the bank authorities during this long 9 years between February, 1991 and January, 2000. As observed herein above, it may not be far off the mark for the bank to infer that she must have been in the foreign country concerned where her husband has been employed. Be that as it may, these crucial facts of the matter is one aspect which persuade this Court to hold the view that the discretionary jurisdiction vested in this Court as per Article 226 of the Constitution of India is not to be exercised in favour of the petitioner and that any sympathy that may be entertained y this Court would be totally misplaced and would amount to undeserved commiseration with the cause of employment delinquency of unauthorised absenteeism. In view of the afore-stated discussion, this Court is of the considered opinion that no illegality, impropriety or unreasonableness has been committed by the 1st respondent-Tribunal in passing the impugned Ext.P-4 award.
Accordingly, the Writ Petition (Civil) stands dismissed. However, there will be no order as to costs.