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Judgment
M. Sathyanarayanan, J
The appellant is the writ petitioner and she challenged the order of the second respondent dated 19.8.1996, wherein it has been stated that she
deemed to have voluntarily retired from service from 14.8.1996, on the expiry of the notice period, under the provisions of Bipartite Settlement
dated 27.05.1989, by filing a writ petition. The writ petition was dismissed and aggrieved by the same, the present writ appeal is filed.
The facts as culled out from the affidavit filed in support of the writ petition and the counter affidavit are as follows:
The appellant herein was selected by the Banking Service Recruitment Board and was appointed as a clerk/Cashier and was given posting in
Punjab National Bank, Chidambaram and she joined duty on 22.07.1993 in the said branch. The appellant was confirmed in service on
22.1.1994.
The appellant became sick and consequently she was forced to apply Leave on Medical Certificate on 13.9.1995 for a period of 30 days. The
appellant''s father was suffering due to stomach pain and he was operated for chronic peptic ulcer. In the year 1995, the appellant''s father was
diagnosed malignant growth in the chest, for which, he had to take treatment at Chennai. The appellant''s father in spite of such a serious health
problem, used to visit the appellant at Chidambaram, which also aggravated his health problem.
The appellant in view of the above said circumstances, sent an application dated 23.9.1995 with a separate letter stating in detail the problems
faced by her and prayed the second respondent for her transfer to any one of the branches at Chennai. The said request was also permissible in
terms of Clause No. 20.17 of the First Bipartite Settlement dated 19.10.1966. However, the second respondent never came to pass any orders
on the request made by the appellant. The first respondent in response to the application dated 13.9.1995 submitted by the appellant for Medical
Leave, sent a reply dated 10.10.1995 asking the nature of leave to be debited. It has been further stated in the said letter that the appellant is
having Privilege Leave of 24 days and Sick Leave of 6 days to her credit and consequently the first respondent advised the appellant to report for
duty immediately as she was not having sufficient leave to her credit. The said letter according to the appellant is contrary to Clause No. 13.2 and
13.4 of First Bipartite Settlement dated 19.10.1966 and the said clauses are extracted below:
Clause 13.2 of the said Settlement States:
An employee who desires to obtain leave of absence other than casual leave, shall apply in writing to the Manager or any other Officer appointed
for the purpose. If the leave asked for is granted, an order showing the date of commencement of the leave and the date on which the employee
will have to resume duty shall be issued to him.
Further, Clause 13.4 of the said Settlement states:
If leave is refused or postponed, the reason for the refusal or postponement, as the case may be, shall be mentioned in the order, and a copy of the
order given to the appellant.
The first respondent has not followed the said Clauses in respect of the leave application submitted by the appellant.
The first respondent sent a communication dated 24.6.1996 to the appellant under the caption ""Voluntary Cessation of employment"". It has
been stated that the appellant is absenting from work without submitting leave application/intimation to the first respondent since 30.12.1995 and
therefore, she was directed to report for duty within 30 days from the date of the notice i.e. on or before 23.7.1996, failing which, it will be
presumed that the appellant was deemed to have voluntarily retired from service of the Punjab National Bank from the said date. The appellant in
response to the said communication, sent a letter dated 13.7.1996 to the first respondent with a Medical Certificate under Certificate of Posting,
stating that she was not in a position to come over to Chidambaram on account of her father''s deteriorated health. As per the Medical Certificate
dated 15.7.1996 enclosed along with the above reply, it has been stated that Medical treatment was advised for two months from 13.7.1997 to
10.9.1996.
However, the first respondent has passed final orders dated 19.8.1996 (impugned order in the writ petition) stating that the appellant had
deemed to have voluntarily retired from service in terms of Bipartite Settlement with effect from 14.8.1996. Thereafter, the appellant sent number
of leave letters with Medical Certificates and prayed to the respondents for reconsideration of the order dated 19.8.1996 indicating that the
decision was an unilateral one and she is having every intention to render her service to the first respondent Bank. The third respondent sent a reply
dated 4.8.1997 to the appellant stating among other things that the contents of the order dated 19.8.1996 are in order. The appellant challenging
the vires of the said order, has preferred an appeal dated 11.1.2001 to the third respondent and since no orders have been passed on the appeal,
preferred the writ petition challenging the vires of the order dated 19.8.1996 and for other consequential benefits.
The Functional Manager at Integrated Zonal Office of the Punjab National Bank, has filed his counter on behalf of the respondents 1 to 3. In the
counter affidavit, it has been stated that she made a request for transfer vide representation dated 23.9.1995 citing personal grounds and recent
developments and also citing illness of her father. However, no Medical Certificates were enclosed along with the said representation and it was
forwarded to the Regional Office on 26.9.1995. In the meanwhile, the appellant submitted a letter dated 13.9.1995 by post from Chennai,
requesting for sanction of leave enclosing a Medical Certificate dated 30.8.1995 stating that she was suffering due to enteric fever and she has
been advised rest for one month. The Branch Office of the respondent Bank sent a letter dated 10.10.1995 by RPAD to the appellant, informing
her that she was absent from duty ever since from 30.8.1995 i.e. more than 30 days and she was advised to specify the nature of leave since she is
having Privilege Leave of 24 days and Sick Leave of 6 days to her credit and she should report for duty immediately, since she did not have
sufficient leave to her credit. However, the appellant failed to respond to the said letter.
The request for transfer submitted by the appellant was forwarded to the Regional Office and the Branch Manager has also sought guidelines
from the Regional Office in respect of sanctioning of leave to the appellant, since she did not have any leave to her credit. The appellant was once
again advised vide letter dated 2.2.1996 sent by RPAD to report for duty immediately as she was unauthorisedly absent from duty, failing which,
suitable action will be taken against her. The appellant was once again informed vide letter dated 26.4.1996 that she had been absenting herself
from duty from 30.8.1995 citing illness and also informed to her that she is not having any leave to her credit and that she is unauthorisedly
absenting herself. However, the appellant has not chosen to respond and therefore, the Branch Manager vide his letter dated 16.5.1996 and
4.6.1996 to the Regional Office, had recommended that suitable action may be taken against the appellant.
The Regional Office of the respondent Bank, vide letter dated 19.6.1996 advised the Chidambaram Branch to serve upon the employee a
notice for voluntary cessation of employment and accordingly, notice dated 24.6.1996 was sent to the appellant both by RPAD and in Certificate
of Posting and the contents of the said letter are as follows:
She had been absenting from work without submitting leave application/intimation to the Bank since 30.12.1995. The letters dated 2.2.1996 and
26.4.1996 sent by the Bank to her advising her therein to report for duty, have also not been responded. She also did not have any leave at her
credit. Thus she had been absenting from duty continuously for more than 90 consecutive days without any intimation and Bank had therefore,
reasons to believe that she had no intention of joining duty.
It was further stated that her continued absence from duties without any intimation was not permissible and therefore, the Bank was constrained to
send this notice to her. She was therefore, directed to report for duty within 30 days from the date of this notice i.e. on or before 23.7.1996, failing
which it will be presumed that she had no intention of resuming duties and she would be deemed to have voluntarily retired from the Bank''s service
from the said date.
Notice sent by RPAD was returned with an endorsement ""No such name at the address"" while the copy of the same sent by Certificate of Posting
was returned with remarks ""received open cover"" with initials by postal officials. However, there was no response from the appellant. When the
father of the appellant visited the Chidambaram Branch on 31.7.1996 and 1.8.1996, for closing the joint account and locker, he was orally
informed about the serving of the letters on the appellant calling upon her to join duty and though the respondents sent letter dated 31.7.1996 to
the appellant for remitting the balance in her Savings Bank Account, she never chosen to send any acknowledgement or leave application. Once
again, a notice was sent on 15.9.1996 by RPAD as well as under Certificate of Posting and were returned undelivered. Therefore the second
respondent was left with no other option except to invoke Fourth By-partite Settlement and pass orders stating that the appellant was deemed to
have voluntarily retired from service of the Bank with effect from 14.8.1996. In view of her continued absent from duty without any intimation. The
said decision was communicated by means of a letter dated 19.8.1996 (the order impugned in the writ petition).
The appellant sent a letter dated 3.9.1996 stating that in response to the letter dated 24.6.1996 sent by the Chidambaram Branch, she sent a
letter dated 13.7.1996 along with Medical Certificate and that she has no intention to quit the job but expressed her difficulty to continue at
Chidambaram and prayed for transfer to Madras. Along with the said letter the appellant had enclosed her earlier letter dated 13.7.1996 sent
under Certificate of Posting.
The respondents further averred that in view of her continued absence and her non response to the notices sent by the respondents, they were
left with no other option except to invoke Fourth Bi-Partite Settlement, which provides for passing of orders for deemed Voluntary retirement on
the ground of the concerned employee absenting herself from service for a period of 90 or more consecutive days without submitting any
application for leave. The respondents further averred that the said clause in the Fourth Bi-partite Settlement has been complied with in letter and
spirit and consequently, the appellant cannot have any grievance.
The learned Judge after taking into consideration the averments made in the writ petition and the counter affidavit and on a perusal of typed set
of documents held that invocation of clause No. 16 of the Bi-partite Settlement is valid as the petitioner had absented herself from duty without
sufficient cause and the no domestic enquiry was necessary in such circumstances. The learned Judge also found that the appellant herself has
belatedly approached the Court after 7 years after passing of the final orders and there is no satisfactory explanation for such a long delay. The
learned Judge for the said reasons, has dismissed the writ petition. The writ petitioner being aggrieved by the said order of dismissal of the writ
petition, has preferred this appeal.
Heard the submissions of Mr. N.G.R. Prasad, learned Counsel appearing for the appellant and Mr. S. Jayaraman, learned Counsel appearing
for the respondents and also perused the typed set of documents filed by the appellant and the respondents.
Clause No. 16 of the Fourth Bi-partite Settlement states as follows:
When an employee absents himself from work for a period of 90 days 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 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 a vocation 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.
The appellant submitted a leave application dated 13.9.1995 enclosing a medical certificate, wherein it has been stated that she is suffering due to
enteric fever and advised rest for a period of one month from 30.8.1995. The respondents in response to the said leave application sent a
communication dated 10.10.1995 stating that she is not having sufficient leave to her credit and it was followed by another letter dated 2.2.1996
stating that the appellant is unauthorisedly absenting from duty and she was called upon to report for duty immediately, failing which suitable action
will be initiated against her.
The Senior Manager of the respondent bank sent a notice dated 26.4.1996 to the appellant stating that the appellant is continuing to be defiant
and she has not reported for duty till then and her unauthorised absence for more than 30 days constitute gross misconduct in terms of the
provisions of By-partite Settlement Clause No. 19.5 though she was warned and that the management will be compelled to proceed further if she
does not report for duty. The copy of the said communication was addressed to the Manager Personnel Department, Regional Office which is
extracted below:
Madam,
Reg: Your absence in duty.
***
You have been absenting yourself from duty from 30.8.1995 for the reason Enteric fever, viral infetivehepality vide your Lrs. dt.13.9.95 Lr.dt.Nil
and received by us on 20.11.95.
We have already brought to your notice vide our Lr.dt.10.10.95 that have no leave to your credit and your absence from duty is unauthorised. We
have also warned you vide our Lr.dt.2.2.96 that we will be constrained to take suitable action against you if you failed to report for duty
immediately.
You are continuing to be defiant and you have not reported for duty till now. Your unauthorised absence for more than 30 days constitutes gross
misconduct in terms of provision of Bipartite Settlement Clause No. 19.5 as contained in Personnel Division Circular No. 1496 dt.2.6.95.
You are again warned that we will be compelled to proceed further if you do not report for duty immediately on receipt of this letter along with
Medical Certificate from a Civil Surgeon.
Sd/-
Sr. Manager
Copy to:
The Manager, Personnel Department, Regional Office, Madras.
... w.r.t. his Lrs.lRM/PER/IR/466/96 dt. 14.2.96,
RM/PER/IR/1024/96 dt.3.4.96.
... We will be moving for disciplinary action against the employee on the grounds of gross misconduct in case she fails to respond this letter.
The Branch Office of the respondents Bank sent a communication dated 24.6.1996 to the appellant stating among other things that the continued
absence of the appellant from duty without any intimation is not permissible and therefore, she was directed to report for duty within 30 days from
the date of the notice i.e. on or before 23.7.1996, failing which, it will be presumed that the appellant has no intention of resuming duty and she will
be deemed to have voluntarily retired from Bank service from the said date. As per the averments made in the counter, admittedly, the
communication dated 24.6.1996 was not served on the appellant.
A perusal of the files would reveal that the Personnel Department of the second respondent has sent a letter dated 12.7.1996 to the Branch
Office at Chidambaram stating as follows:
The Manager,
BO Chidambaram.
Reg: Miss V R Shenbagalakshmi, C/C at yours - voluntary cessation of employment.
Ref: Your letter dated 9.7.96.
...
Both the Regd. letter and letter sent under certificate of posting returned undelivered be kept in the personal file of the employee, unopened and in
tact.
Copy of the notice sent to the employee was not forwarded to our office for our records. Please oblige.
It is not informed in your letter to which last known address of the employee the notice was sent. If it was to the address at Madras mentioned by
the employee in her last letter, another set of letter may be sent to her local address known to the bank under copy to us. If returned, they be filed
in tact and unopened in the personal file of the employee.
In addition, please inform the name of two newspapers in Tamil as well as English, having widest circulation in your area.
The matter be closely followed up for further instruction, immediately on expiry of the notice period.
MANAGER(P).
Admittedly, paper publication was not effected.
The learned Counsel appearing for the respondents would vehemently contend that the respondents have not received the letter dated
13.7.1996 sent by the appellant under Certificate of Posting along with Medical Certificate. It was also pointed out by the learned Counsel
appearing for the respondents though the said letter dated 13.7.1996, the Medical Certificate along with the said letter is dated 16.7.1996. It was
also pointed out by the learned Counsel appearing for the respondents that since address differs from the letter as well as the receipt for Certificate
of Posting, the authenticity of the said document is highly doubtful. In this connection, we perused the filed and at page 174 a letter dated
19.9.1996 was sent by Personnel Department, Regional Office of the respondents bank to the Branch Office at Chidambaram drawing the
attention of the letters dated 7.9.1996 and 11.9.1996. As per the contents of the said letter, the Branch Manager is requested to:
(a) verify and submit report on the suspected nexus between her and some employee of the post office.
(b) forward PF proposal forms sent to you on 31.8.96, duly recommended for settlement of terminal dues.
Admittedly, before passing the final orders on 19.8.1996, last communication was sent on 24.9.1996 to the appellant and as per the own
admission of the respondents in their counter, it was not served. As per the terms of Clause 16 of the Bipartite Settlement, the communication
should be sent to the last known address calling upon the concerned person to report for duty within 30 days of the notice stating inter alia the
grounds for coming to the conclusion that the employee has no intention of joining duty and furnishing necessary evidences available and only if the
employee joined duty or gives explanation for the findings within the said period to the satisfaction of the management, the concerned employee will
be deemed to have retired voluntarily from the Bank service on the expiry of the notice. No doubt, the communication dated 24.6.1996 was sent
to the last known address of the appellant. However, a perusal of the communication dated 12.7.1996 at page 141 of the files produced by the
respondents would reveal that the respondents intend to effect publication in two newspapers in vernacular language as well as in English having
wide circulation in the area. Therefore, it is clear that the respondents took a decision to effect paper publication since the communication dated
24.6.1996 was not served on the appellant. However, no paper publication was effected. In the absence of such paper publication, the impugned
order stating that the appellant deemed to have voluntarily retired from service in terms of Clause 16 of the Bipartite settlement in our considered
opinion is unsustainable. That apart, the appellant seriously disputed about the receipt of communications from the Bank and also specifically
contended that she sent a letter dated 13.7.1996 to the respondents indicating her grievance to join the service and also prayed for transfer to
Chennai, as her father was suffering due to serious aliments. Of course, the receipt of such communication is seriously disputed by the respondent
and also doubted the authenticity of the said letter. Therefore, the said disputed facts can be threshed out only by holding a domestic enquiry
against the appellant for the alleged unauthorised absence.
The learned Counsel appearing for the appellant would contend that the grievance of the appellant cannot be rejected on the ground of latches
as in the event of reinstatement of the appellant, back-wages can be denied to her and therefore, the delay/latches would no way prejudice the
respondents.
The learned Counsel appearing for the respondents has placed reliance upon the following judgments:
i) Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, ;
ii) (2001)1 SCC 214 Punjab and Sind Bank and Ors. v. Sakattar Singh
In Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, the concerned employee was unauthorisedly
absenting from work for a period exceeding the prescribed limit of 90 days and notice sent by RPAD in terms of Bipartite Settlement was received
back with an endorsement ""refused"", it has been held in the said decision that the notice by RPAD returning with an endorsement ""refused
amounting to proper service and therefore the termination was held to be proper.
In (2001)1 SCC 214 Punjab and Sind Bank and Ors. v. Sakattar Singh, it has been held that termination of service on account of
unauthorised absence for 90 or more consecutive days beyond the sanctioned period of leave under Clause No. 16 of IV Bipartite Settlement, is
not punishment for misconduct, but only a recognition of the realities of the situation and does not result in violation of principles of natural justice
and therefore, no domestic enquiry is necessary. In our considered opinion, the facts of above said cases are different from the case on hand.
In the case on hand, the letter dated 24.6.1996 sent by the respondents invoking Clause No. 16 of the Bipartite Settlement was returned with
an endorsement ""No such name at the address"" and the copy of the said letter sent under Certificate of Posting was returned opened with remarks
received open cover"". Admittedly, as stated supra, the decision was taken to effect paper publication in Vernacular language news daily and
English Newspaper to serve the appellant, but the said publication was not effected. Therefore, in the absence of effective communication to the
appellant, indicating the intention of the respondents management to voluntarily retire her services in terms of Clause 16 of the Bi-Partite
Settlement, on the ground of unauthorised absence, would render the impugned order vitiated.
As regards the submissions of the learned Counsel appearing for the respondents, that the appellant is guilty of delay and latches, we are of the
view that any delay or latches in filing the writ petition cannot be considered straightjacket formula as such question depends upon the facts and
circumstances of each case. In the factual matrix of this case, we are of the considered view that the delay/latches on the part of the appellant has
not vitiated the merits of her contention.
In view of the disputed questions regarding the service of notices and other communications on the appellant especially the notice dated
24.6.1996, we are of the considered opinion that the respondents should have held a domestic enquiry before passing the impugned order of
deemed voluntary retirement as in the domestic enquiry, the disputed facts could have been thrashed out.
Hence, for the above said reasons, the impugned order dated 19.8.1996 passed by the second respondent is set aside. The respondents are
directed to reinstate the appellant/writ petitioner into service as clerk/cashier and liberty is granted to them to hold departmental/domestic enquiry
against the appellant on the ground of unauthorised absence.
It is made clear that the appellant/writ petitioner is not entitled to back-wages or service benefits as the same would depend upon the result of
the departmental/domestic enquiry to be held against her. The respondents are directed to complete the departmental/domestic enquiry after
complying with the procedural formalities within a period of three months from the date of receipt of the copy of this order and the appellant/writ
petitioner is required to extend her utmost cooperation.
In the result, the writ appeal is allowed on the above terms and the orders passed in the writ petition as well as the impugned order, which is
the subject matter of challenge in the writ petition are set aside. But in the circumstances, there will be no order as to costs.