IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.08.2010 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition No.11859 of 2001 and W.M.P.No.17297 of 2001 Assistant General Manager, Local Head Office, State Bank of India, Rajaji Salai, Chennai.01 .. Petitioner Vs 1. Sri.M.Chaidambaram 2. Industrial Tribunal, Tamil Nadu,Chenai. .. Respondents . . . Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of relating to the impugned Award dated 10.01.2001 made by the Industrial Tribunal, Tamilnadu in I.D.No.103 of 1998 and quash the same. . . . For petitioner : Mr.K.S.Sundar For 1st respondent : Mr.N.G.R. Prasad for Row & Reddy R2 : Tribunal . . O R D E R The first respondent was working as a Cook in the Staff Quarters of the petitioner Bank known as Underwood Gardens, Chennai. He unauthorisedly absented himself from 17.5.1994 onwards. A notice dated 14.07.1994 was issued to him calling upon him to join duty within three days. But there was no response to the said notice. It is further stated that yet another notice dated 03.08.1994 was issued by the petitioner-Bank to the first respondent calling upon him to join duty within 30 days. For the said notice also, it is alleged that there was no response. Finally, a notice dated 22.8.94 was issued which states as follows: " Please refer to the Letter Nmo.Lo.87 dated 14.07.1994 and LO 103 dated 03.08.1994, calling upon you to report for duty. It is observed that you https://hcservices.ecourts.gov.in/hcservices/ are continuing to be absent from duty since 17.05.1994. 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 30 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." 2. The said notice was acknowledged by the first respondent. Thereafter, he joined duty and he did not give any explanation also. In view of the same, the petitioner-Bank passed a final order by Memo LO.133 dated 22.9.1994, declaring that the first respondent as deemed to have voluntarily retired from service on 21.1.1994 as per Clause XVI of the Bi-partite Settlement of the year 1998. 3. The first respondent is aggrieved by the said order. Challenging the same, he raised an Industrial Dispute before the Industrial Tribunal Tamilnadu, Chennai in I.D.No.103 of 1998. Before the Industrial Tribunal, on the side of the first respondent herein, he examined himself as W.W.1 and on the side of the Bank-Management, one mr.M.Balasubrmaniam filed a proof affidavit as M.W.1. As many as nine documents were exhibited on the side of the employee and ten documents were exhibited on the side of the Management. Having considered all the above, the Industrial Tribunal by Award dated 10.01.2001 directed reinstatement of the first respondent with continuity of service, with further direction to treat the period of absence as medical leave with or without pay as permissible under the rules. The petitioner-Bank is aggrieved by the same and that is how, the petitioner is now before this Court with this writ petition. 4. Before going into the rival contentions, let me, at the first, look into clause XVI of Bipartite Settlement of the year 1998, which reads as follows: "XVI. Voluntary Cessation of Employment by the Employees: In supersession of clause 2 of the Settlement dated 8th September 1983 the following shall apply: Where an employee has not submitted any application for leave and absents himself from work for a period of 90 or more consecutive days without or beyond any leave to his credit or absents himself for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended or where there is satisfactory evidence that he has taken up employment in India or the management is satisfied that he has no present intention of joining duties, the management https://hcservices.ecourts.gov.in/hcservices/ may at any time thereafter give a notice to the employee's last known address calling upon the employee to report for duty within 30 days of the notice, stating, inter alia, the grounds for the management 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 or unless he 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 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. In case of an employe who has gone abroad, and has not submitted any application for leave and absents himself for a period of 150 or more consecutive days without or beyond any leave to his credit or absents himself for 150 days or more consecutive days beyond the period of leave originally sanctioned or subsequently extended and where the management has reasons to believe that he has no intention of joining duties, the management may at any time thereafter give a notice to the employee's last known address calling upon the employee to report for duty within 30 days of the notice. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the management, the employee will be deemed to have voluntarily retired from the Bank's service on the expiry of the same 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." 5. A perusal of the Award of the Industrial Tribunal would go to show that the industrial Tribunal has held that the crucial notice dated 22.08.1994 does not satisfy the legal requirements, namely, clause XVI of the Bipartite settlement. In view of the same, the Industrial Tribunal has held that the order dated 22.09.1994 declaring the first respondent as voluntarily retired, is not valid. The learned counsel for the petitioner would submit that a close reading of clause XVI of the Bipartite Settlement would go to show that if an employee remains absent for more than 90 days, then after issuing a notice calling upon him to join duty https://hcservices.ecourts.gov.in/hcservices/ and despite the same, if he fails to attend, then an order declaring that he has retired voluntarily, can be passed. He would further submit that there is no necessity to call upon the employee to submit any explanation in this regard. He wold take me through the notice dated 22.08.1994 in support of his contention that it satisfies the legal requirements. He would say that apart from calling upon the first respondent to join duty, it was also informed to him that if he failed to join duty, he will be deemed to have voluntarily retired from service on the expiry of the notice period. To substantiate the said contention, the learned counsel has relied on two judgments. The first one is, the case of Syndicate Bank VS General Secretary, Syndicate Bank Staff Association and another reported in AIR 2000 Supreme Court 2198. That is also a case relating to Bipartite Settlement and the absence of duty of an employee for more than 90 days. In paragraph 14 of the said judgment, the Hon'ble Supreme Court has observed as follows: "In the present case action was taken by the Bank under Clause 16 of the Bipartite Settlement. It is not disputed that Dayananda Absented himself from the work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon to report for duty within 30 days of the notice stating therein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period Bank passed orders that Dayananda had voluntarily retired from the service of the Bank." 6. In paragraph 17, the Hon'ble Supreme Court has held as follows: "Bank has follows the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement." https://hcservices.ecourts.gov.in/hcservices/ 7. Here, a close reading of paragraph 14 of the said judgment would make one to clearly understand that the notice calling upon the delinquent to report for duty within 30 days of the notice, should also state the grounds for the bank to come to the conclusion that the employee had no intention of joining duty. Thus it is crystal clear that the notice should satisfy two conditions. The first requirement is to call upon the employee to join duty within 30 days and the second requirement is to state the grounds for the Bank to come to the conclusion that the employee had no intention of joining duty. 8. The second one is, in the case of Punjab & Sind Bank and others Vs Sakattar Singh reported in (2001) 1 Supreme Court Cases 214 wherein also, while considering the scope of the Bipartite Settlement, the Hon'ble Supreme Court in paragraph 4 has held as follows: "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 where ever 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 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. https://hcservices.ecourts.gov.in/hcservices/ 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 plying truant." 9. Again, a close reading of the above judgments would make it abundantly clear that the Bank, apart from satisfying the two requirements stated above, should also furnish necessary evidence wherever relevant, which formed the foundation for the Bank to come to the conclusion that the employee has no intention of joining duty. 10. In the case on hand, a reading of the notice dated 22.08.1994 would go to show that it satisfies only the first requirement. The second requirement, namely, the grounds for coming to the conclusion that the employee had no intention to join duty, has not been satisfied. Apart from that, the third requirement, namely, furnishing of the evidence, which are the foundation for the Bank to come to the conclusion that the employee had got no intention to join duty, also has not been complied with. Thus, in my considered opinion, before passing the impugned order dated 22.08.1994, the Bank did not strictly comply with the legal requirements as stated in the above two judgments. To put it otherwise, the notice dated 22.08.1994, does not satisfy the above requirements and therefore, on the expiry of the time fixed in the notice, there is no question of automatic voluntary retirement of the first respondent. 11. The learned counsel for the respondent would point out that the notice dated 22.08.1994 states that the first respondent would be liable to pay to the Bank one month's pay and allowances in lieu of the notice. Focussing on this statement in the notice, the learned counsel would submit that it is not in consonance with the Bipartite Settlement and instead, the said clause indicates that the first respondent was only terminated from service. I find every justification in the said argument also. 12. The learned counsel for the first respondent would rely on the judgment of the Hon'ble Supreme Court in Viveka Nand Sethi VS Chairman, J & K Bank Ltd. And others reported in 2005(II) L.L.J. 1034. In paragraph 20, the Hon'ble Supreme Court has held as follows: "It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in out considered view amounts to https://hcservices.ecourts.gov.in/hcservices/ sufficient compliance of the requirements of the principles of natural justice." 13. In my considered opinion, the principles stated in the said judgment have got no application to the facts of the case in hand. That was a case where an enquiry was held by the Bank to come to the conclusion that the employee had no intention to join duty. It is not so in the instant case. The learned counsel would submit that the Industrial Tribunal has given much weightage to the medical records produced by the employee/first respondent to come to the conclusion that his absence was not wilful. In my considered opinion, the same is irrelevant for the issues involved in this writ petition. It is not a case of termination from service on the ground of mis-conduct based on any enquiry. If any such enquiry had been held, then only, the explanation would have been relevant. But here, the first respondent has been sent out of service on voluntary retirement and not on holding any enquiry. If the notice dated 22.08.94 is held to be a valid notice and if the reasons for coming to the conclusion that the first respondent had no intention to join duty have been stated, then only to test the correctness of the same, the explanation offered by the first respondent can also be considered . In this case, the Bank has not stated anywhere till today as to what are the materials on which the Bank had come to the conclusion that the first respondent had no intention to join duty. Thus, looking at the Award of the Industrial Tribunal from any angle, I find that it does not require any interference at the hands of this Court. 14. In the result, the writ petition fails and the same is accordingly, dismissed. Connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar PAL To The Industrial Tribunal,Tamil Nadu, City Civil Court Buildings, Chennai Copy to:The Section Officer, VR Section, High Court, Madras. 1 cc To M/s.Row and Reddy, Advocate, SR.60155 1 cc To M/s.K.S.Sundar, Advocate, SR.59786 W.P.No.11859 of 2001 RB(CO) sra 30/08/2010 https://hcservices.ecourts.gov.in/hcservices/