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Judgment
R. Mahadevan, J.—The petitioner is co-operative bank, registered under the Tamil Nadu Co-operative Societies Act. The second respondent herein, who was working as an Attender in the petitioner bank, misappropriated the amount. Hence, the second respondent was suspended from service, on and from 31.07.1992. A detailed charge memo, dated 01.08.1992, was issued to him calling upon the second respondent to submit his explanation. The second respondent submitted his explanation, on 25.06.1993. Not satisfied with the explanation offered by the second respondent, the petitioner ordered a domestic enquiry and accordingly, an Enquiry Officer was appointed. The Enquiry Officer conducted enquiry and submitted enquiry report, on 22.09.1993, holding that the charges levelled against the second respondent were proved. Therefore, by order, dated 27.09.1993, the second respondent was dismissed from service. Questioning the order of dismissal, the second respondent filed I.D.No.131 of 1997, before the Labour Court, Madurai. By Award, dated 03.10.2007, the Labour Court, Madurai, set at naught the order of dismissal and directed reinstatement of the second respondent in service, without continuity of service, but without back wages. Assailing the correctness of the Award of the Labour Court, Madurai, the petitioner/management is now before this Court.
The learned counsel appearing for the petitioner submits that the Labour Court committed a grave error in passing the Award by reinstating the second respondent, without any valid reasons. The learned counsel further contended that the Labour Court could have either remanded back the matter for fresh enquiry or permitted the parties to let in evidence. The learned counsel also contended that since the second respondent did not appear for enquiry, the proceedings were concluded ex parte . The learned counsel also contended that the evidence let in on behalf of the petitioner would clearly establish that the charges against the second respondent are true and not aimed to terminate the services of the second respondent at the instance of the secretary. The learned counsel also contended that abandonment of service for a long period would amount to voluntary retirement warranting no orders from the employer and placed reliance on the Judgments of the Apex court in Regional Manager, Bank of Baroda Vs. Anita Nandrajog, and in Vijay S. Sathaye Vs. Indian Airlines Ltd. and Others, . The learned counsel hence pleaded that in the above circumstances, the Award of the Labour Court may be set aside.
Per contra, the learned counsel appearing for the second respondent would contend that there is no perversity in the order of the first respondent in setting aside the order of termination, as the domestic enquiry was completed, without providing proper opportunity to the second respondent and the entire proceedings proceeded in a predetermined ideology. The Labour Court also considered the evidence and found that the evidence does not disclose the charter of duties of the second respondent so as to fix the liability on him, and hence, rightly set aside the order of the petitioner/management. The learned counsel, however, contended that without considering that the second respondent was not even paid the subsistence allowance during the period of suspension, the Labour Court just directed to reinstate the second respondent with continuity of service without back wages. The learned counsel, hence, pleaded that the Writ Petition may be dismissed and the Award may be modified so as to grant back wages to the second respondent.
I have considered the above submissions and perused the records carefully.
It is not disputed that the domestic enquiry was concluded ex parte . It is also not in dispute that the order of termination was passed without issuing a second show cause notice. The Labour Court, after considering the evidence, has come to the conclusion that the domestic enquiry was not conducted properly. Upon perusal of the enquiry report and the Award, this Court is unable to take a different view than the one taken by the Labour Court. To counter the explanation to the charge memo, the enquiry officer has relied upon the audit objections, a copy of which was not furnished to the second respondent. Therefore, this Court is also of the view that the domestic enquiry was not conducted property and sufficient opportunity to the second respondent was not given.
Providing an opportunity to the delinquent employee must not be an empty formality. All the documents relied upon by the management must be furnished to him. In the present case, it is apparent that all the documents marked by the petitioner were not furnished to the second respondent. It is also evident that the enquiry was adjourned at the instance of the enquiry officer or the management for more than two occasions. However, the second respondent was set ex parte , just because he did not appear even once. Hence, it is clear that the domestic enquiry is vitiated.
With regard to charges of misappropriation and dereliction of duty attributed against the second respondent, the Labour Court has found that the petitioner has not furnished the charter of duties of the second respondent, who was employed as an attender, and therefore, quashed the charges against the second respondent. The second respondent had specifically stated that he had not signed any of the vouchers and he had not received any money. The enquiry officer had held that in the audit objections, it has been mentioned that instead of making deposits in individual names, the amounts have been deposited in one challan. If reliance is placed upon the audit objections and the vouchers, a copy of the same must have been furnished to the second respondent. In the absence of the same, the documents cannot be relied upon. With regard to charge that the second respondent had in collusion with erstwhile secretary misappropriated funds, it is pertinent to mention here that charges were not framed against the second respondent earlier and only after terminating the service of the erstwhile secretary and the advent of the new secretary, the charge is made against the second respondent along with other charges.
With regard to unauthorized leave and absenteeism from work, the learned counsel for the petitioner/management has relied upon the following judgments in Regional Manager, Bank of Baroda Vs. Anita Nandrajog, and in Vijay S. Sathaye Vs. Indian Airlines Ltd. and Others, . In the decision in Anita Nandrajog''s case, the Apex Court, fortifying the view of the Judgment in Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, , upheld the termination of the employee, who absented herself for a long time as treating the same as voluntary cessation. The Apex Court, in the facts of the case, had held that since the requirements of Biparte Agreement were fulfilled, there was no necessity to even hold an inquiry.
In the Judgment in S.Sathaye''s case, the Apex Court, following the Judgments in Regional Manager, Bank of Baroda Vs. Anita Nandrajog, and The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, , held as follows:
It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
In Jeewanlal (1929) Ltd. v. Workmen this Court held as under: (AIR p. 1570, para 6)
6.. there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.
(See also Shahoodul Haque v. Registrar, Coop. Societies.)
For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as "retrenchment" from service. (See State of Haryana v. Om Parkash.)
In Buckingham and Carnatic Co. Ltd. v. Venkatiah, while dealing with a similar case, this Court observed: (AIR p. 1275, para 5)
5.. Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.
A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd.
In Syndicate Bank v. Staff Assn. and Aligarh Muslim University v. Mansoor Ali Khan this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant, Chief Engineer (Construction) v. Keshava Rao and Bank of Baroda v. Anita Nandrajog.
Thus, in view thereof, the petitions are devoid of merits. An offer had been made by the respondents to the petitioner vide letter dated 9-4-2008 for accepting the payment of Rs.1,42,042.45p. and Rs.6,24,104.58p. However, he did not accept the said amounts. The same amounts have been paid today to Shri Manish Pitale, learned counsel for the petitioner through (i) DD No. 795783 dated 05-09-2013 drawn on State Bank of India amounting to Rs 6,24,104.58p. (Rupees six lakhs twenty-four thousand one hundred four and fifty-eight paise only), and (ii) DD No. 753199 dated 05-09-2013 drawn on State Bank of India amounting to Rs 1,42,042.45p. (Rupees one lakh forty-two thousand forty-two and forty-five paise only) and the same have been accepted herein. In view thereof, we do not see any justification to other dues. By this payment, the claim stands fully and finally settled.
While appreciating the above Judgments and the facts of the present case, it is evident that in the above cases, notices were issued to the employee asking him to report for work. In the present case, no such notice was issued. Further, the employee has claimed to have attended the work, but the secretary refused to permit him to sign the attendance register. As stated earlier, the second respondent was set ex parte for not attending one hearing and prevented from cross-examining the witnesses of the petitioner. In addition, the charges against the second respondent not only relate to unauthorized leave but also relate to misappropriation and dereliction of duty. Hence, the above judgments are not applicable to the present facts of the case. Further, once it is decided to commence an enquiry, the enquiry must be fair, just and reasonable. The petitioner cannot now plead that the enquiry itself need not be conducted. There charges are of the year 1992 and the Award is of the year 2007, therefore, there cannot be any justification for ordering re-enquiry and this court does not find any illegality in the order of the Labour Court for the reasons stated above.
In the result, the Writ Petition is dismissed. No costs.