IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7151 of 2001 WAKIL BHARTI Versus THE UNITED COMMERCIAL BANK & ORS ----------- 07- 1.5.2008 Heard Mr. Krishna Nandan Singh for the petitioner, and Mr. S.N. Choubey for the respondents. This writ petition is directed against the order dated 3.8.1999 (Annexure-4), issued by the UCO Bank, whereby the petitioner has been voluntarily retired from the services of the Bank on account of unauthorised absence. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. According to the writ petition, the petitioner was in the services of the Bank and had obtained prior permission to proceed on leave from 25.7.1998 to 31.7.1998. He fell ill during this period and, therefore, sent several applications for extension of leave. Photo copies of his leave applications are marked Annexure-1 series to the writ petition. He reported for duties on 6.4.1999, but was not allowed to resume his duties. In view of criminal cases pending against him, he was in custody from 7.4.1999 to 23.12.1999. The petitioner had informed the Bank of his 2 incarceration by his communication dated 7.4.1999 (Annexure-2). The Bank had forwarded its communication dated 9.4.1999 (Annexure-3) to the petitioner as per his last known address, informing him that he was continuously on unauthorised absence from 27.7.1998, he should report for duties within 30 days from the date of receipt of the letter, and was also called upon to submit his explanation for his unauthorised absence, failing which he will be deemed to have been voluntarily retired from the services of the Bank on expiry of the notice period. It is further stated in the writ petition that he never received the said communication dated 9.4.1999 (Annnexure-3), because the same was dispatched as per his village address whereas, he was during that period, in jail. This was followed by the impugned order, whereby he has been voluntarily retired from the Bank‟s service. 3. While assailing the validity of the impugned action, learned counsel for the petitioner submits that the provision for Voluntary retirement was not in force on the date of the impugned order. He next submits in the alternative that the requisite statutory 3 notice in terms of paragraph 17(a) was not served on him which is mandatory. He next submits that paragraph 17(a) provides that the employee should show clearly or by necessary intendment that he has no intention of resuming his duties. He lastly submits that 270 days of earned leave were available to his credit and, therefore, his period of absence ought to have been adjusted. 4. Learned counsel for the respondents has submitted that the writ petition is replete with factual errors. He further submits that the requirement in terms of paragraph 17(a) to serve notice as per his last known address was done but was returned unserved. He next submits that the respondent authorities were not aware of the petitioner‟s incarceration and, therefore, the notice could not have been despatched as per the jail address. He also submits that a major portion of the correspondence annexed to the writ petition are forged and fabricated documents created for the purpose of the present litigation and were never forwarded to the respondents. He submits in the same vein that the petitioner had never applied for leave. He next submits that the petitioner was involved in 4 three criminal cases. He next submits that the provisions for Voluntary Cessation of service was in force on the date of the impugned order. He lastly submits that in the alternative that the doctrine of prospective over-ruling shall apply in the present case. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioner claims that he had proceeded on leave for the period 25.7.1998 to 31.7.1998 after obtaining prior permission. During that period he fell ill and had sent various applications for extension of leave till 5.4.1999. This position has been disputed by the respondents in their counter affidavit wherein it is stated that the leave applications marked Annexure-1 series were never received by the respondent authorities. It further appears to me that the aforesaid notice dated 9.4.1999 (Annexure-3) clearly stated that the petitioner was on unauthorised absence continuously from 27.7.1998. He was, therefore, called upon to report for duties within 30 days from the date of receipt of the letter, failing which it will be presumed that he is not interested in resuming his duties and shall be 5 deemed to have been voluntarily retired. The said notice dated 9.4.1999 (Annexure-3) is a contemporaneous document, and is a photo copy of the original. It was issued and maintained in routine course of business and has, therefore, high evidentiary value. Taking into account the facts and circumstances of the case, it appears to me that the petitioner‟s case that he was on authorised leave from 25.7.1998 to 31.7.1998, followed by various applications for extension of leave till 5.4.1999, is based on forged and fabricated documents created for the purpose of the present case and is fit to be rejected. I have, therefore, no hesitation in reaching the conclusion that the petitioner was continuously on unauthorised leave from 25.7.1998 to 6.4.1999. Learned counsel for the respondents is right in his submission that the petitioner has set up his case that he had reported for duties on 6.4.1998, but was not allowed to resume because the same clearly fits in with the subsequent development that he was in custody from 7.4.1999 to 23.12.1999. It is manifest from the counter affidavit which gives reasonable details that three F.I.Rs. have been lodged implicating the 6 petitioner for his acts of omission and commission. 6. The memorandum of Bipartite Settlement dated 10.4.1989 between the Management of 54 „A‟ Class Banks as represented by the Indian Banks‟ Association and the workmen as represented by the All India Bank Employees Association and the National Confederation of Bank Employees, governs the terms and conditions of the employees. Paragraph 17 is headed “Voluntary Cessation of Employment by the Employees”, and is reproduced hereinbelow for the facility of quick reference: 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 interalia the 7 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 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.” It is manifest on a plain reading of the same that, in case of unauthorised absence, the Bank may call upon the employee to explain his unauthorised absence and report for duties without fail, all within 30 days of the receipt of the notice. If cause shown by the employees indicates that the employee had no intention of joining duties and furnishing necessary evidence, then the Bank can pass an order of Voluntary Cessation of Employment. It has been found hereinabove that the petitioner was on unauthorised absence without break for the period 25.7.1998 to 23.12.1999. It thus covers a period of 517 days. It is thus evident that the 8 Bank had far more than adequate justification to call upon the petitioner to take action in terms of paragraph 17(a). The same provides that the notice has to be served as per his last known address. It appears from perusal of Annexure-3 that the notice had been served as per his village address stated in his service record. This part of the legal requirement was thus fully complied with. 7. It further appears that the notice could not be served on him as per his village address because he was not found there. I must at this stage consider the petitioner‟s contention that he had sent his communication dated 7.4.1999, from Begusarai jail to the Branch Manager at Begusarai, informing him of his incarceration. In view of the totality of the circumstances, this document does not inspire confidence and seems to have been created for the purpose of the present case. The obvious conclusion is that the respondent Bank was not aware of the petitioner‟s incarceration and, therefore, service of notice as per the last known address as obtaining in the service record cannot be faulted. I, therefore, conclude that the requisite notice in terms of paragraph 9 17 was duly sought to be served on the petitioner which could not really be served on him because of his incarceration for which the Bank cannot be faulted. 8. Paragraph 17 further requires that after the employee has reported for duties within 30 days of the receipt of the notice, and equally a consideration of the cause shown, must disclose that he has had no intention of joining duties. In the facts and circumstances of the present case, I am convinced that the petitioner had no intention of joining his duties, particularly in a situation where his absence from 25.7.1998 to 6.4.1999 is absolutely unexplained. In other words, the two-fold requirement of applicability of paragraph 17, namely, service of notice and absence of intention on the part of the employee to resume his duty, is clearly met. 9. I must deal with the contention advanced on behalf of the petitioner that paragraph 17 stood deleted on the date of the impugned order. As stated hereinabove, paragraph 17 is part of the memorandum of Bipartite Settlement dated 10.4.1989. It appears that portions of the same were deleted and/or 10 modified by the subsequent memorandum of Settlement dated 27.3.2000. Paragraph 33 of the later settlement reads as follows: “33. Voluntary Cessation of Employment Clause 17 of the Fifth Bipartite Settlement dated 10th April, 1989, shall stand deleted.” The same has to be read with paragraph 35 of the same settlement which is set out hereinbelow for the facility of quick reference: “35. Implementation (a) The various provisions of this settlement shall take effect from the dates specified hereunder, unless provided to the contrary and the financial benefits emanating therefrom shall be given effect to within a period of 90 days from the date of this Settlement. 1) Scales of Pay, Dearness Allowance and consolidated wages to part time employees working for less than 6 hours per week 2. Provident Fund on 85% of Pay, Pension, Special Pay, Graduation Pay and Professional Qualification Pay 3. Provident Fund on entire Pay, Gratuity, House Rent Allowance, City Compensatory Allowance, Washing Allowance, Hill & Fuel Allowance, Transport Allowance, Annual Medical Aid, Hospitalisation Expenses, Fixed Personal Pay, Paradip 1.11.1997 1.4.1998 11 It is thus evident that paragraph 17 of the earlier Settlement stood deleted with effect from 27.3.2000, the date of the Settlement. The impugned order was passed on 3.8.1999, much before paragraph 17 of the earlier Settlement providing for voluntary cessation of employment ceased to be in force. 10. I must next consider the contention advanced on behalf of the petitioner that 270 days of earned leave were available to the credit of the petitioner and, therefore, ought to have been adjusted against the period of absence. The contention is stated only to be rejected. Law is well settled that application for leave has to be submitted and sanction has to be obtained. There is no material on record to suggest that the petitioner had submitted such an application, much less prior approval was obtained. Equally, Port Town Allowance and Fifth Stagnation Increment 4. Halting Allowance and all other items agreed to but not covered by the above Clauses. 5. Split Duty Allowance, Cycle Allowance and Overtime Allowance 1.11.1999 Date of Settlement 1.4.2000 12 leave applied for can for valid reasons be refused. 11. In the result, I do not find any merit in this writ petition. It is accordingly dismissed. (S K Katriar, J.) S.K.Pathak/