IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 5952 of 2009. Date of Decision : April 21, 2009. Pawan Kumar. ....... Petitioner. Versus. Presiding Officer, Industrial Tribunal-cum-Labour Court, Chandigarh, and another. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Naveen Daryal, Advocate, for the petitioner. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 14.05.2007 (Annexure-P-3), passed by the Industrial Tribunal-cum-Labour Court, Chandigarh, vide which the reference has been answered against the workman, holding there in that the workman had abandoned his job and the termination of the services of the workman by the Bank by invoking Clause 17 of the 5th Bipartite Settlement, dated 10.04.1989, was fully justified. Counsel for the petitioner contends that the workman was appointed as a Clerk and it is an admitted position that from 22.09.1978 till 24.11.1989, the petitioner-workman continued as such. He contends that the petitioner-workman had sought leave on medical grounds and the said leave was extended from time to time. He remained on leave from 25.11.1989 to 23.05.1993. Thereafter, he applied for extension of leave alongwith medical certificates. He had intimated the change of his address to the Management but still the notices were not sent to him on the changed address. He further C.W.P. No. 5952 of 2009. contends that it has come on record and has been admitted by the witness of the Management that the notices issued to the petitioner-workman had been returned un-delivered, meaning thereby that no reasonable opportunity was granted to the petitioner-workman to present his case before the Management. He on this basis contends that the findings as recorded by the Labour Court, is not justified and deserve to be set aside. Counsel for the petitioner-workman relies upon the judgment of Andhra Pradesh High Court in the case of S. Ramachandra Alse Versus The Deputy General Manager, Syndicate bank, Hyderabad, 2000(1) S.C.T. 607, to contend that the clause with regard to abandonment of service voluntarily by the petitioner-workman, if was to be invoked, it would only be invoked after due issuance of notice. Nothing was done, so the factor of fair play would come into effect and as he was given proper opportunity of being heard by the employer, leading to infraction of the principles of natural justice, this judgment would apply and the order of termination would be illegal. He further contends that Clause 17 of the 5th Bipartite Settlement dated 10.04.1989 with regard to voluntary cessation of employment, could not be invoked by the Bank as the same was deleted w.e.f. 01.11.1997. He contends that the Labour Court while deciding reference, vide its order dated 14.05.2007, could also not have relied upon the clause which was no more on the records as on the date when the reference was being decided by the Labour Court, the said clause did not exist. I have heard counsel for the petitioner and have gone through the records of the case. -2- C.W.P. No. 5952 of 2009. Perusal of the records and the evidence which has been produced by the parties before the Labour Court. The Labour Court has come to an affirmative finding that the petitioner-workman had although applied for leave but without waiting for the same having been sanctioned, proceeded on leave, meaning thereby that without sanction of leave, the petitioner-workman had absented from duty. On the basis of the evidence produced further the Labour Court has come to a conclusion that the petitioner-workman has failed to prove that he was not medically fit and for that reason, leave was sought on medical ground. No cogent evidence has been led by the petitioner-workman to prove the photocopies of the medical certificates produced by him. The said documents not having been proved before the Labour Court, have not rightly been taken into consideration by the Labour Court. The petitioner-workman has further failed to produce any evidence to show that he had conveyed the changed address to the Management. In the absence of changed address, the address available with the Bank was used for corresponding with the workman. Since, various communications were sent to the petitioner-workman, intimating him regarding non sanction of his leave and the workman failed to rejoin duty, the Management was right in coming to a conclusion that the workman was not interested in pursuing his job. The conclusion which was drawn by the Management that the workman has abandoned his service voluntarily as he did not wish to report back for duty, has been fully justified in the facts and circumstances of the present case. The authority was available with the Bank to invoke Clause 17 of the 5th Bipartite Settlement, dated 10.09.1989 which provided for invoking the clause to come to a conclusion that the -3- C.W.P. No. 5952 of 2009. workman has voluntarily ceased his employment. It is not in dispute that on the date when the conclusion was drawn by the Management i.e. 26.11.1993, the said provision was very much available on the records and was a valid piece of agreement which according to the petitioner himself is a document which governs the service condition of the workman. While considering Clause 17 of the Bipartite Settlement on the question of absence from duty in terms of Bipartite Settlement deeming voluntary retirement due to long absence without any intimation despite notice, Hon'ble the Supreme Court in the case of Syndicate Bank Versus The General Secretary, Syndicate Bank Staff Association and another, 2000 (5) S.C.C. 65, has upheld the decision of the Bank in invoking the provisions of Bipartite Settlement. Similarly in the case of Viveka Nand Sethi Versus Chairman, J and K Bank Limited and others, 2005 (2) S.C.T. 702, Hon'ble the Supreme Court has reiterated this position. The learned Labour Court has in its award while dealing with the question that the workman had failed to convey the change of address to the Management, come to a conclusion that two letters sent to the workman by the Management, were received un-served. But in response to these very letters of the Management sent on the same address, the workman visited the Branch of the Management on 23.03.1993. All this shows that the workman had been aware of the letters from the Management but he did not respond to the call of the Management and remained absent from duty years together. The contention as raised by counsel for the petitioner that the Labour Court while deciding the reference on 14.05.2007 should have taken into consideration the fact that Clause 17 of the 5th Bipartite Settlement, dated 10.04.1989 was not available on the said date on the statute book -4- C.W.P. No. 5952 of 2009. which could be taken into consideration by the Bank, is totally mis-placed and mis-conceived. The provisions or agreements or rules governing the service which have the force of law, continues to have its effect till they are repealed or amended or modified. In the present case, the services of the employee by invoking Clause 17 of the 5th Bipartite Settlement was held to have been voluntary cessation of employment by the workman, vide order dated 26.11.1993. Clause 17 was very much available on the Bipartite Settlement on the said date when the said clause was invoked by the Bank. Clause 17 of the 5th Bipartite Settlement dated 10.04.1989 as per the assertion of counsel for the petitioner, seized to have its effect w.e.f. 01.11.1997, but the date when Clause 17 was invoked by the Bank for dispensing with the services of the workman i.e. 26.11.1993, it was in force and carried legal sanctity and therefore, has rightly been invoked. The Labour Court while adjudicating the dispute, has to settle the rights on the date of termination of the workman. The Labour Court has accordingly decided the reference as per the provisions available and applicable on the date of termination of the workman. It would not be out of way to mention here that this ground was neither taken before the Labour Court nor was it pleaded or asserted either in the claim statement or during the evidence led before the Labour Court. The judgment, reliance whereof has been made by counsel for the petitioner in the case of S. Ramachandra Alse (supra), the proposition as laid down therein, cannot be disputed with but in view of the fact that the workman by simply putting his application presumed that his leave has been sanctioned, is totally mis-conceived on the part of the employee. Nothing has been shown on the records or nothing has come in evidence that any effort was made by the workman to verify the factual -5- C.W.P. No. 5952 of 2009. aspect with regard to his leave having been granted/sanctioned or not. All this go to show that indeed the workman had voluntarily left assignment and was not interested in pursuing the same. He had, therefore, abandoned the service voluntarily and invocation of Clause 17 of the 5th Bipartite Settlement by the Bank, is fully justified and in accordance with law. Finding no merit in this writ petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE April 21, 2009. sjks. Whether referred to the Reporter – Yes/No. -6-