IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 11..01.2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.Nos.16490 of 1997 and 17493 of 1998 Indian Bank, No.31, Rajaji Salai, Chennai 600 001. Rep. by its Assistant General Manager ... Petitioner in W.P.No.16490 of 1997 -Versus- 1.Smt.S.Maheswari 2.The Presiding Officer, Industrial Tribunal, Madras. ... Respondents in W.P.No.16490 of 1997 Smt.S.Maheswari ... Petitioner in W.P.No.17493 of 1998 -Versus- 1. The Presiding Officer, Industrial Tribunal, Chennai. 2. The Management of Indian Bank, Rep. by its Chairman cum Managing Director, No.31, Rajaji Salai, Chennai 600 001. ... Respondents in W.P.No.17493 of 1998 Prayer in W.P.No.16490 of 1997:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records connected with I.D.No.105 of 1992 on the file of the Presiding Officer, Industrial Tribunal, Madras and quash the award dated 24.04.1997 made therein and communicated to the petitioner Bank by order of the Government India, Ministry of Labour, dated 07.08.1997 and received by the petitioner Bank on 18.09.1997. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.17493 of 1998:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records connected with I.D.No.105 of 1992 on the file of the Presiding Officer, Industrial Tribunal, Madras and quash the award dated 24.04.1997 made therein and communicated to the petitioner by order of the Government India, Ministry of Labour, dated 07.08.1997 and received by the petitioner in end of August, 1997 holding For petitioner in W.P.No.17493 of 1998 and for 1st respondent in W.P.No.16490 of 1997 : Mr.Ajoy Khose For 2nd respondent W.P.No.17493 of 1998 and petitioner in W.P.No.16490 of 1997 : Mr.A.L.Somayaji, Senior Counsel for Mr.S.Ramasubramaniam Associates For 1st respondent in W.P.No.17493 of 1998 and 2nd respondent in W.P.No.16490 of 1997 : Industrial Tribunal COMMON ORDER Since these two writ petitions arise out of the award passed by the Industrial Tribunal, Tamil Nadu, Chennai in I.D.No.105 of 1992 dated 24.04.1997, they were heard together and they are disposed of by means of this common order. For the sake of convenience, in this order, the parties are referred to in the array of parties in W.P.No.17493 of 1998. 2. The petitioner Mrs.Maheswari was appointed as a clerk cum typist in the respondent Bank and she joined duty on 24.02.1986 at Kumarapalayam Branch. On confirmation in services, she was transferred to the Zonal Office, Coimbatore at her request and accordingly she joined duty on 08.12.1990. On reporting duty on 08.12.1989, the petitioner informed that she would be availing joining time of 6 days from 09.12.1989 and report for duty on 15.12.1989. On 15.12.1989 as assured by her earlier she did not turn up for duty. In this regard, the Zonal Office, Coimbatore of the respondent Bank sent a letter dated 30.12.1989 to the petitioner informing about her unauthorized absence and asking her to report for duty forthwith. The said communication was sent to her address at Coimbatore which was furnished by her to the Zonal Office and the same was acknowledged by her. But, she did not turn up for duty forthwith. Instead, she sent a letter dated 03.01.1990 stating that she was suffering from pain in her vertebral column https://hcservices.ecourts.gov.in/hcservices/ and so she was not in a position to report for duty. She requested for leave. On receipt of the letter dated 03.01.1990, the respondent bank sent a letter on the same day calling upon her to apply for leave, if need be, in the prescribed format along with appropriate medical certificate. The said letter was also sent to the very same address which was earlier furnished by her to the Zonal Office. But, there was no response for the said letter. Again on 02.02.1990, the respondent bank sent another letter to the petitioner calling upon her to submit her leave application with medical certificate within 3 days or in the alternative to report for duty immediately. But, this letter, which was sent by way of registered post with acknowledgement due, was returned to the respondent bank with an endorsement by the postal authorities as "not found". Thereafter , on 19.03.1990, the respondent bank sent another letter through registered post to the petitioner giving her 30 days time to report for duty as per Clause 17 (a) of the Bi- partite settlement and further informed that in the event of her failure to either reporting for duty or submitting any valid explanation she would be deemed to have voluntarily retired from service on the expiry of the notice period. The said notice was sent to the very same address at Coimbatore which was also not served. The notice period of 30 days expired on 17.04.1990. Therefore, in terms of clause 17 (a) of the Bi-partite settlement, a final notice was issued on 02.05.1990 informing the petitioner that she was deemed to have voluntarily retired from service with effect from 17.04.1990. This notice was also not served on the petitioner and the same was returned by the postal authorities with an endorsement "as not found". Thus, according to the respondent bank, as per clause 17(a) of the Bi-partite settlement, the petitioner voluntarily retired from service with effect from 17.04.1990 and thereafter, there was no relationship of employer and employee between the respondent bank and the petitioner. 3. While so, on 26.12.1990, the petitioner sent a letter to the bank stating that she would send medical certificate in a few days. For the first time, in the said letter, the petitioner had given her address at Bangalore. In the said letter, she had referred to yet another letter of hers dated 07.02.1990 informing about her change of address. But the respondent bank denied having received any such letter dated 07.02.1990. Subsequently, on 24.01.1991, the petitioner sent yet another letter to the respondent bank requesting for transfer to Bangalore or any other place at Bangalore. For the said letter, the respondent bank sent a communication on 04.02.1991 to the petitioner narrating the above facts and informing her that she was no more employed in the bank since she had voluntarily retired from service with effect from 17.04.1990 in terms of clause 17 (a) of the Bi-partite settlement. For the said letter, a reply was sent by the petitioner on 16.02.1991 wherein she again referred to the letter dated 07.02.1990. Thereafter , she raised an industrial dispute and the same was referred to the Government of India vide Order No.L- 12012/196/92-IR(B.II), Ministry of Labour dated 04.12.1992, Government of India, New Delhi under Section 10 (1) (d) of the https://hcservices.ecourts.gov.in/hcservices/ Industrial Disputes Act. The dispute referred for adjudication reads as follows:- "Whether the action of the management of the Indian Bank is justified in deeming Smt.Maheswari to have voluntarily retired from the bank services with effect from 17.04.1990 ? If not, to what relief is the workman entitled?" Thereafter, the Industrial Tribunal , Tamil Nadu, Chennai took up the reference in I.D.No.105 of 1992. 4. In the claim statement filed before the Industrial Tribunal, inter alia, the petitioner contended that her absence from duty was not wilful. She reiterated her stand that she was suffering from disease in her vertebral column and, therefore, she was not able to join duty on or after 15.12.1989. She further contended that due to unbearable pain and other sufferings she was not able to communicate her illness to the respondent bank forthwith. However, according to her, she applied for leave on 02.01.1990 and in the said leave application she informed the respondent bank that she would submit medical records after the treatment was over. She further claimed that as per the advise given by the Doctor, she shifted her residence to Bangalore for taking continuous treatment. Accordingly, she had started staying at Bangalore in a temporary address and on 07.02.1990 itself she sent a letter to the respondent bank informing her new address at Bangalore and requesting the respondent bank to send all communications to the said address. She further claimed that since there was no response to the said letter, she was under the impression that medical leave was duly sanctioned. After the treatment was over, she sent a letter on 25.01.1990 to the respondent bank informing her health condition and assuring to produce the medical certificate. Again she sent a letter on 24.01.1991 enclosing the medical certificate and requesting for transfer to Bangalore city or any other place in Bangalore. It was only thereafter she received the letter dated 04.02.1991 informing that she had already been deemed to be on voluntary retirement with effect from 17.04.1990. It is the further contention of the petitioner that the notice as required under Clause 17 (a) of the Bi-partite settlement giving 30 days time was not served upon her. It was the further contention of the petitioner that the final notice dated 02.05.1990 was not served on her. She further contended that the notice and the final notice were not sent to her address at Bangalore though she had furnished her address in Bangalore by her letter dated 07.02.1990. Thus, according to the petitioner, the final notice dated 02.05.1990 effecting voluntary retirement from 17.04.1990 is not valid. 5. In the counter filed before the industrial tribunal, the respondent bank contended that the above two notices were sent to her last known address at Coimbatore because that was the address furnished by her at the time when she reported for duty on https://hcservices.ecourts.gov.in/hcservices/ 08.12.1989. Thereafter, there was no response to the above notice from her at all. The notice dated 19.03.1990 and final notice dated 02.05.1990, which were sent to her last known address at Coimbatore, were all returned as “not found” . It was further contended that the letter dated 07.02.1990 said to have been sent by the petitioner to the respondent bank informing the bank about her change of address was never received by the bank. For the first time, in the letter dated 16.02.1991, the petitioner had made a reference about the alleged letter dated 07.02.1990. As a matter of fact, no such letter was sent on 07.02.1990. The claim of the petitioner that a letter informing change of address was sent on 07.02.1990 had been invented for the purpose of the case. Thus, according to the respondent bank, the order dated 02.05.1990 effecting voluntary retirement with effect from 17.04.1990 is valid and the same requires no intereference. 6. In order to resolve the said dispute, the industrial tribunal called upon the parties to let in evidence. On the side of the petitioner she examined herself as WW-1 and exhibited as many as 16 documents as Ex.W.1 to W.16. On the side of the respondent management, one Mr.Hariharajan, was examined as MW-1 and as many as 22 documents were exhibited. Having considered the above materials, the industrial tribunal found that the so called letter dated 07.02.1990 (Ex.W.6) was not really sent to the respondent bank and the same had been introduced only in order to put up a defence in the dispute. The industrial tribunal further found that the petitioner had shown indifference in informing the respondent bank about her absence for a period of over one year. The industrial tribunal further found that all the communications sent by the bank were rightly sent to the last known address furnished by the petitioner to the bank on 08.12.1989. The industrial tribunal further found that since the petitioner did not turn up for duty for such a long period despite the notices sent to her, the action of the respondent bank in passing the final order dated 02.05.1990 effecting voluntary retirement with effect from 07.04.1990 is valid under law. However, taking a lenient view, considering that the petitioner was very young and a beginner in banking service, the tribunal had shown mercy on her and directed the bank to reinstate her in service without continuity of service and back wages. 7. Challenging that the portion of the award wherein the tribunal has directed the respondent bank to reinstate the petitioner in service, the respondent bank has come up with W.P.No.16490 of 1997. Challenging the finding of the tribunal that the order of the respondent bank dated 02.05.1990 effecting voluntary retirement on the petitioner with effect from 07.04.1990 and seeking for a consequential relief for continuity of service and back wages , the petitioner has come up with W.P.No.17493 of 1998. That is how, both these writ petitions are now before me for disposal. https://hcservices.ecourts.gov.in/hcservices/ 8. The facts which are not in dispute in these two writ petitions are as follows:- (a) The petitioner was transferred from Kumarapalayam Branch to the Zonal Office at Coimbatore. Accordingly, she reported for duty on 08.12.1989. (b) At the time when she reported for duty she gave her address at Coimbatore as No.162-A, Murugaiya Thevar Colony, Arumuga Nagar, Ramanathapuram, coimbatore 641 045. (c) On 08.12.1989 she informed the respondent Bank that she would avail joining time and report for duty on 15.12.1989. But, on or after 15.12.1989, she did not turn up for duty at all. (d) On 30.12.1989, the respondent bank sent a letter to the above address calling upon the petitioner to join duty forthwith and the same was received by her. (e) On 03.01.1990, the petitioner sent a letter to the respondent bank seeking leave until recovery from her illness. In the said letter, she had given the very same address at Coimbatore. (f) On 03.01.1990, the respondent bank sent a letter to the very same address at Coimbatore calling upon her to submit her leave application in a proper format along with medical certificate. According to the petitioner, it was not received by her. The crucial notice dated 19.03.1990 calling upon the petitioner to join duty within 30 days in terms of Clause 17 (a) of the Bipartite settlement and the final notice dated 02.05.1990 were sent by registered post to the address of the petitioner at Coimbatore. But the same were not served on her and they were returned as "she was not found". 9. The disputed facts are as follows:- On 07.02.1990 itself the petitioner sent a letter to the respondent bank informing her new address at Bangalore. But, according to the respondent bank, this letter was not at all received by them. According to the petitioner, since the crucial notices dated 19.03.1990 and 02.05.1990 were not sent to he address at https://hcservices.ecourts.gov.in/hcservices/ Bangalore as intimated by her in her letter dated 07.02.1990, they were not in compliance of terms and conditions of Clause 17(a) of the Bipartite Settlement. 10. With the above admitted facts as well as disputed facts, let me, now, look into clause 17 (a) of the Bipartite Settlement which is very crucial for a just decision in these writ petitions. The Clause 17 (a) reads as follows:- "17 (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 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 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 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." [Emphasis supplied] 11. Referring the above clause, during the course of argument, the learned counsel appearing for the petitioner would submit that the impugned order of the respondent bank, declaring the petitioner deemed to have voluntarily retired, is wholly without jurisdiction. According to him, in order to acquire jurisdiction to issue any order under clause 17 (a) of the Bipartite Settlement, the respondent bank should have essentially satisfied the following requirements:- https://hcservices.ecourts.gov.in/hcservices/ (i) The employee should have been absent from duty for a period of 90 days or more consecutively 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. (ii) There should have been a reasonable satisfaction on the part of the management that the employee had no intention of joining duty. (iii) On recording such satisfaction, the management should have issued a notice calling upon the employee to report for duty within a period of 30 days from the date of notice. (iv) The notice should contain , inter alia, the ground for coming to the conclusion that the employee had no intention of joining duty. (v) The notice should furnish necessary evidences for such conclusion which are available at the hands of the management. 12. According to the learned counsel appearing for the petitioner, in this case, except the first requirement, the rest of the requirements were not at all satisfied by the respondent bank and thus, the impugned order is not only bad in law, but also, wholly without jurisdiction. 13. But, the learned senior counsel appearing for the respondent bank would submit that this is a new plea introduced for the first time only during the course of argument by the petitioner which is not permissible under law. According to the learned senior counsel, such a new plea in respect of validity of the notice was neither raised before the Industrial Tribunal nor raised as a ground in the writ petition. Further, he would contend that in the absence of any plea taken either before the industrial tribunal or raised as a ground in the writ petition, this court cannot be called upon to decide the said question in vacuum. Thus, according to the learned senior counsel, the said contention is liable to be rejected. 14. Since the whole exercise depends upon the validity of the notice issued in terms of clause 17 (a) of the Bipartite Settlement, I am of the view that it is absolutely necessary for me to examine the above rival contentions at first. In this regard, the learned counsel on either side have placed reliance on a number of judgements of the Hon'ble Supreme Court about which I would make reference at the appropriate stages of this order. 15. Indisputably, the validity of the notice dated 19.03.1990 wherein the respondent bank had called upon the petitioner to report for duty within a period of 30 days had/has not been neither raised before the industrial tribunal nor raised as a ground in the memorandum of grounds in the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 16. But, the learned counsel for the petitioner would submit that since the validity of the notice relates to the question of jurisdiction of the respondent bank to proceed further to make declaration under Clause 17 (a) of the Bipartite settlement, notwithstanding the fact that such a specific plea was neither taken before the industrial tribunal nor raised as a ground in the writ petition, the same needs to be examined by this Court. For this proposition, the learned counsel would rely on a judgement of the Hon'ble Supreme Court in Kalyani Sharp India Ltd v. Labour Court No.1, Gwalior and another, (2002) 9 SCC 655. That was a case where the termination of service of a workman was challenged by means of an industrial dispute. But, no specific plea was taken before the industrial tribunal that the termination of service of the workman therein was not effected by complying with Section 25-F of the Industrial Disputes Act. Such a plea was not taken before the High Court also in the writ petition. For the first time, it was taken before the Hon'ble Supreme Court wherein an objection was raised by the management that such a plea on the basis of Section 25-F of the Industrial Disputes Act cannot be allowed to be raised before the Hon'ble Supreme Court. The Hon'ble Supreme Court negatived the said contention and held that in matter of simple application of law, even in the absence of specific plea taken before the forums below, it can be allowed to be raised for the first time before the higher forum. The relevant observations of the Hon'ble Supreme Court found in paragraph 5 of the judgement are as follows:- " 5. So far as the first contention raised on behalf of the respondent is concerned, we may state that the argument emerges from the documents which the respondent has relied upon before the Labour Court to show about his employment and the termination of his service. No fresh investigation of fact is required. It is a case of simple application of law in the matter. Hence, the preliminary objection is rejected." 17. The learned counsel would rely on yet another judgement of the Hon'ble Supreme Court in Kamalesh Babu and others v. Lajpat Rai Sharma and others, (2008) 12 SCC 577. That was a case where the question of limitation was not raised before the first appellate court or the High Court. For the first time, they were raised before the Hon'ble Supreme Court. When an objection was taken for raising such a new plea, the Hon'ble Supreme Court held that the question of limitation relates to the jurisdiction of the court and, therefore, the same can be allowed to be raised at any stage as the ultimate decision rendered without jurisdiction will be a nullity. In paragraphs 21 , 22 and 23 are as follows:- "21. It is no doubt true, as was pointed out by this Court in the case of Balasaria Construction (P) Ltd., (2006) 5 SCC 658 and also in Narne Rama Murthy's case, (2005) 6 SCC 614, that if the plea of limitation is a mixed https://hcservices.ecourts.gov.in/hcservices/ question of law and fact, the same cannot be raised at the appellate stage. We have no problem with the said proposition of law. What we are concerned with is whether the said proposition is applicable to the facts of this case. In this case the plea of limitation had been raised in the written statement and though no specific issue was framed in respect thereof, a decision was given thereupon by the learned trial court. 22. Apart from Section 3(1) of the Limitation Act, even Order 7 Rule 11(d) of the Code of Civil Procedure casts a mandate upon the court to reject a plaint where the suit appears from the statement in the plaint to be barred by any law, in this case by the law of limitation. Further, as far back as in 1943, the Privy Council in the case of Lachhmi Sewak Sahu vs. Ram Rup Sahu & Ors. [AIR 1944 Privy Council 24] held that a point of limitation is prima facie admissible even in the court of last resort, although it had not been taken in the lower courts. 23. The reasoning behind the said proposition is that certain questions relating to the jurisdiction of a Court, including limitation, goes to the very root of the Court's jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. However, we are not required to elaborate on the said proposition, inasmuch as, in the instant case such a plea