1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.763/02 Deep Singh vs. Punjab & Sind Bank Ltd. & Ors. Date of order : 16/12/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.S. Hora for the petitioner. Shri B.S. Ratnu for the respondents. ****** REPORTABLE This writ petition has been filed by the petitioner challenging the order dated 4.5.1996 by which it has been directed that the petitioner would stand voluntary retired from service with effect from the expiry of 30 days from the date of notice dated 15.3.1996 as per clause 17 of 5th Bipartite Settlement dated 10.4.1989. Shri S.S. Hora, learned counsel for the petitioner has submitted that allegation that the petitioner was absent from duties from 21.8.1995 till he was discontinued from service vide impugned order dated 4.5.1996 is factually incorrect and in this connection, he cited number of applications which he submitted to the respondents on 28.12.1995, 15.2.1996 and 12.4.1996, in all of which, he requested for assigning him a 2 proper duty place and assign him actual duties. Learned counsel contended that the attitude of the bank towards him was biased because it had lodged a criminal case against him, owing to which the petitioner was initially suspended by the respondents on 29.11.1982, but subsequently his suspension was revoked on 18.5.1989. The petitioner then rejoined on 22.5.1989 and ultimately he was convicted in the criminal case on 23.7.1997. The impugned order has been passed wholly with a view to getting rid of the petitioner. It was unjust and unfair labour practice. No opportunity of hearing was provided to the petitioner. Learned counsel cited the judgment of Supreme Court in Lakshmi Precision Screws Ltd. vs. Ram Bahagat-(2002) 6 SCC 552 and D.K. Yadav vs. J.M.A. Industries Ltd.-(1993) 3 SCC 259 and argued that in spite of similar provision in the settlement / agreement between the parties, in the aforesaid cases, the Supreme Court held that the order of removal / termination of services could not be validly passed without compliance of the principles of natural 3 justice. Learned counsel also cited the judgement in ABL International Ltd. & Anr. vs. Export Credit Guarantee Corporation of India Ltd. & Ors.-(2004) 3 SCC 553 and Radha Raman Samanta vs. Bank of India & Ors.- (2004) 1 SCC 605 and argued that in appropriate cases, the writ courts have jurisdiction even in matters involving disputed questions of fact and there is no absolute bar in regard thereto. Shri B.S. Ratnu, appearing for the respondents opposed the writ petition and submitted that the petitioner continuously remained absent for the period from 21.8.1995 till 4.5.1996 when the impugned order was passed. Earlier to this also, the petitioner absented from duties for 51 days and was served with a charge sheet on 3.1.1994 but a lenient view was taken by the management because the petitioner gave in writing that he would not now leave the bank without sanction of leave and an order of warning was issued to him. The petitioner had the habit to absent from duties frequently. Learned counsel submitted that warning letters were issued to the 4 petitioner on various dates such as 16.9.89, 1.9.89, 7.2.92, 14.3.92, 17.3.92, 1.7.92, 29.12.92, 19.1.93, 3.2.93 and 28.9.93, yet the petitioner did not improve his conduct. It was argued that Supreme Court in Punjab & Sind Bank & Ors. vs. Sakattar Singh-(2001) 1 SCC 214 has held the aforesaid clause of bipartite agreement as valid and also held the termination of the services of the employee, who has remained absent for a long period, if it is made after notice as prescribed by the said clause of the bipartite agreement. Learned counsel denied that the petitioner was not assigned the duties or regular place to sit in the office. Learned counsel even disputed the documents and the letters which the petitioner has produced on record demanding so. It was argued that such disputed questions of facts could not be entertained in the writ petition, especially when the writ petitioner has been filed with enormous delay of more than 5 years. I have perused the material on record and also carefully studied the cited precedents. 5 Although it is true that in appropriate cases, this Court can also entertain and decide the writ petition involving disputed questions of fact and there is no absolute bar in regard thereto where the impugned order is totally without jurisdiction and has been passed by an incompetent authority or where it has been passed in complete negation of principles of natural justice. At the same time, as held by Supreme Court in ABL International Ltd., supra, the writ petition involving seriously disputed questions of facts, which requires consideration of evidence, should not be normally entertained under Article 226 of the Constitution. The exception has been made only in cases where disputed questions of fact pertains only to meaning or interpretation of a document or part thereof and this Court can very well go into the same and decide the objections, if facts permits. In Radha Raman Samanta, supra also this rule was deviated from because that was a case where on facts, which were admitted or assumed to be correct, the badli workmen were seeking regular appointment in terms of 6 the bipartite agreement. In the present case, however, there is a serious contest between the parties on contentious issues of facts. Two judgements on which reliance has been placed by the petitioner i.e. in Lakshmi Precision Screws Ltd., supra and D.K. Yadav, supra, both originated from the awards passed by the Labour Court and ultimately travelled upto Supreme Court. The question whether ratio of those judgements relied upon by the petitioner would apply to the facts of the present case would have to be answered on the facts which are admitted and if not admitted, which are proved by the parties. The main controversy being whether the petitioner was absent from duty from 21.8.1995 till 4.5.1996 when the impugned order was passed and whether notice dated 15.3.1996 was served upon the petitioner and further whether the petitioner made number of applications to the respondents to assign him duties and indicate the place where he should sit in the office to discharge his duties, all these contentious issues can be decided only upon appropriate adjudication by the appropriate Labour Court / Industrial 7 Tribunal enabling parties to lead evidence on this question. I do not find any such extraordinary reason in the present case to deviate from the normal rule. Although, it is settled proposition of law that in appropriate cases, the writ court can entertain the writ petition even despite disputed questions of fact and there is no absolute bar in regard thereto but this can be done only for special and exceptional reasons in cases where dispute pertains to meaning or interpretation of documents and can be gone into without the requirement of evidence being adduced. In view of the above, the writ petition is dismissed as not maintainable with liberty to the petitioner to approach the appropriate government for reference of the industrial dispute to the concerned labour court / industrial tribunal. (MOHAMMAD RAFIQ), J. RS/