THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.A.No.109 of 2001 Oral Judgment: (Per Honourable Sri Justice A.Gopal Reddy) This appeal under Clause 15 of the Letters Patent is directed against the order of the learned single Judge in W.P.No.21857 of 1994 dated 09-11-2000 whereunder the writ petition ﬁled by the petitioner was allowed setting aside the circular letter issued by the 2nd respondent in PER (P&C) 25 dated 08-06-1988 intimating that G.V.Raghava Reddy, Messenger, Gudur Branch has been deemed to have voluntarily vacated the bank’s service with effect from 27-02-1988 in terms of Clause XVI of the Fourth Bipartite settlement entered into between the Indian Bank Association and All India Unions of Bank Employees on 17- 09-1984. The facts, which are not disputed and give rise to filing this appeal may, briefly, be stated as under: The husband of the writ petitioner, who joined as Messenger on 02-11-1970, availed 18 months sick leave till the end of 1984 on full pay. Since he was not in a position to work, he went on writing letters to the bank to sanction extraordinary leave. He applied leave upto 01-06-1987, which was not sanctioned, and the bank issuing notices to him calling upon to report to duty stating that if he does not report to duty the same will be treated as unauthorized absence. This fact is evident from the letters addressed by the 1st respondent dated 25-09-1984, 02-07-1985, 06-01-1987 and 20-03-1987. Since the employee failed to report duty by letter dated 06-04-1987 he was advised to report duty within 30 days and failure to do so he will be deemed to have been voluntarily retired from service on expiry of 30 days. In spite of the same he has not responded. Therefore, further notice dated 20-11- 1987 was sent to the employee, which was received by him on 28-11-1987, directing him to report to duty within 90 days, failing to do so he will be deemed to have retired from service after expiry of notice period, which stood expired by 26-02-1988. In spite of the same he failed to respond and ultimately he expired on 21-04-1988. The bank through the impugned circular letter dated 08-06-1988 informed to all its branches that the employee has been deemed to have voluntarily vacated the bank’s service with effect from 27-02-1988. The writ petitioner being the wife of the deceased employee made a representation for payment of pension and other beneﬁts for Mutual Welfare Scheme for SBI employees apart from seeking employment on compassionate grounds as per the scheme of the bank, which was in vogue. The bank by its letter F/26 dated 08-04- 1991 informed the petitioner that her claim for payment of pension and other beneﬁts apart from getting appointment on compassionate grounds cannot be considered, as her husband deemed to have been voluntarily retired from bank service as per Clause XVI of bipartite agreement which lead to filing the writ petition questioning the circular. The respondent/bank ﬁled counter opposing the claim of the petitioner, admitting husband of the petitioner joined in service with eﬀect from 02-05-1971 but he absented himself without the knowledge and permission of the bank and without any leave to his credit to avail, despite being advised several times and ultimately notice was sent on 20-11-1987 calling upon him to report duty within the stipulated period; on expiry of 90 days it is deemed that the husband of the petitioner voluntarily retired from service with eﬀect from 27-02-1988 in terms of Clause XVI of the Bipartite agreement. Earlier to the notice the employee was advised to join duty bringing to his notice Clause XVI of the Bipartite agreement; ultimately ﬁnal notice was issued. As there was no response, he has been deemed to have voluntarily retired from service with eﬀect from 27-08-1988. As on the date of death he was not in service, appointing the writ petitioner on compassionate grounds does not arise and prayed for dismissal of the writ petition. The learned single Judge after referring to Clause XVI of the Bipartite agreement, on which the bank places reliance, held that the deeming clause can be pressed into service if the management has come to the conclusion that in the absence of any explanation from the concerned employee that he has not taken up another employment or avocation and he has no intention of joining duty but not otherwise. The employee after expiry of sick leave, to which he is eligible, sending leave letters from time to time till 01-06-1987, which clinchingly establishes that he is not doing well and asking for extraordinary leave, hence he cannot report to duty. The deeming clause will be pressed into service only when the employee has taken up alternative employment and not responded to the notice by giving explanation. Para-XVI of the Bipartite agreement contemplates 30 days notice, it was not known why the bank has given 90 days notice. Even if the bank wants to rely upon the deeming clause, 90 days period is expired by 26-02-1988 and he is deemed to have been retired from service and no further orders need to be passed. Since orders have been passed on 08-06-1988 stating that the employee voluntarily vacated from service with eﬀect from 27-02-1988 after his death the same cannot be pressed into. Following the judgment of the Apex Court in DELHI TRANSPROT CORPORATION v. D.T.C.MAZDOOR CONGRESS[1] where Regulation 9(b) authorizes the employer to terminate the services of the employee by giving one month’s time or payment in lieu thereof is held to be unconstitutional and the same applies to the facts of the case on hand and accordingly held that the action of the respondent/bank that employee retired from service voluntarily cannot be sustainable and accordingly set aside the circular directing the respondent/bank to consider the case of the petitioner or any of his family members as per the scheme within two months from the date of order. Challenging the correctness of the same Bank filed this writ appeal. We have heard Sri K.Srinivasa Murthy, learned counsel for the appellants, and K.G.K.Prasad, learned counsel for the respondent and perused the material available on record. It is not in dispute that Bank by its letter dated 20-11-1987 called upon the husband of the writ petitioner to join in service within 90 days from the date of such notice; failure to do so as per Clause XVI of the Bipartite agreement he will be ceased to be an employee on expiry of 90 days. Prior to issuance of impugned circular the 1st respondent by letter dated 06-04-1987 advised him to report duty within 30 days failure to do so he will be deemed to have been voluntarily vacated the service on expiry of notice period. As the employee has not responded to the same, ﬁnal notice has been issued on 20-11-1987 but he failed to join duty. Interpreting similar clause of Bipartite agreement a three judge bench of the Supreme Court in PUNJAB AND SIND BANK vs. SAKTTAR SINGH in para-4 of its judgment held as under. “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 wherever 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 of not joining the duty, the employer 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.” Following the above judgment two Judge bench of the Supreme Court in VIVEK NAND SETHI v CHAIRMAN, J&K BANK LTD.[2] held as under: “The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either; (1) report for duties within thirty days; (2) give his explanation for his absence satisfying the management that he has not taken any employment or avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his duties within thirty days or fails to ﬁle a satisfactory explanation, as referred to hereinbefore, that the legal ﬁction shall come into force” In view of the same, circular letter is only an intimation about his ceasing to be in service to all the branches. Petitioner without challenging the notice issued on 20-11-1987 cannot challenge the circular issued by the bank to all its branches notifying that the employee ceased to be in service as per the bipartite agreement. In view of the same, no direction can be issued to consider the case of the writ petitioner or her family members for appointment on compassionate grounds, as the employee deemed to be voluntarily ceased from service. We accordingly set aside the impugned order and the writ petition stands dismissed. Writ Appeal is accordingly allowed. There shall be no order as to costs. ________________ A.GOPAL REDDY, J. ___________ K.C.BHANU, J. 01-09-2008 Murthy [1] AIR 1991 SC 101 [2] (2005) 5 SCC 337