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CASE NO.: Appeal (civil)  3676 of 2006

PETITIONER: GENERAL MANAGER, VIJAYA BANK & ANR.

RESPONDENT: PRAMOD KUMAR GUPTA

DATE OF JUDGMENT: 24/08/2006

BENCH: Dr. AR. LAKSHMANAN & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T  (Arising out of SLP(C) No.10809 of 2005)

Dr. AR. LAKSHMANAN, J.

       Leave granted.         Heard Mr.K.T.S.Tulsi, learned senior counsel appearing on behalf of  the appellants and Dr.R.G.Padia, learned senior counsel appearing on behalf  of the respondent.         The appellant before us is the General Manager of Vijaya Bank.  The  respondent was employed in the bank as a clerk. According to the bank, he  abstained from duty without any leave application on 12.09.1991.  On  13.05.1992, the bank issued notice directing him to report for duty in 30 days  time.  On 11.06.1992, the respondent reported back to duty.  Within ten days,  i.e., on 21.06.1992, the respondent again abstained from duty without any  prior intimation.  On 08.09.1992, the bank issued second notice to the  respondent.  A copy of the said notice was also pasted on the notice board.   The said notice dt.08.09.1992 was received by the respondent on 14.09.1992.   According to the respondent, when he reports for duty on 12.10.1992, he was  not permitted by the bank since he has not joined duty on 08.10.1992, i.e.,  within 30 days from 08.09.1992.  The respondent after four years raised a  dispute on 01.04.1996.  He protested against the termination.  Thereafter, the  matter was referred to the Industrial Tribunal.  The Tribunal in para 12 of its  order has held as under :-

       "The record shows that the concerned workman remained absent  from duty without taking leave and without submitting any  application for leave from 12.11.91 to 10.6.92 and from 21.6.92 till  the cessation of his employment according to the provisions of law.  Even after cessation of his employment in terms of  notice dated  8.9.92, he did not approach higher authorities of the bank for taking  him in the services of the bank.  The record shows that he for the  first time moved an application to the General Manager of the bank  on 1.4.96 without approaching the higher authorities against the  order treating him to have retired from the service which was  passed by the General Manger of the Bank on 28.11.92.  This shows  that the concerned workman was gainfully employed some where  and was earning money from other sources and that is why he kept  mum for four years without approaching higher authorities for  getting job again in the bank.  Sri Hedge M.M.1 clearly stated on  oath that the brother of the concerned workman was carrying a  business of share broker in a shop in front of Jeoni Mandi Branch  of the bank at Agra and the concerned workman also doing the  same business and profession with his brother and that is why he  was not interested in joining the services of the bank. His evidence  on this point goes uncontroverted.  The concerned workman did  not suggest to him that he was not carrying on profession of share  broker and the shop of his brother was not in front of the branch of  the bank in which he was carrying on business of share broker.  

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The evidence of M.W.1 on this point appears to be correct and it  supports the contention of the management that the concerned  workman was gainfully employed in other profession and business  and that is why he had no intention to join duties in the bank and  remained absent for several months without moving any application  for leave and kept mum for four years even after cessation of his  employment.  In these circumstances, the case of the management  appears to be correct that the concerned workman was gainfully  employed in other trade or business and had no intention to join  duties of the bank, and the decision of the bank that he had  relinquished and abandoned the service of the bank appears to be  fully justified."

       In view of the above finding, the Tribunal held that there is no illegality  on the part of the bank in taking action against the respondent-workman.  The  Tribunal further held that the action of the Management in treating the  concerned workman to have voluntarily retired from service of the bank with  effect from 08.10.1992 was wholly justified and lawful.  The reference was  answered by the Tribunal accordingly.           Aggrieved against the order passed by the Tribunal, the respondent  filed a Writ Petition No.24370/2001 in the High Court of Allahabad.  The said  petition was allowed on 18.03.2005.         We have carefully perused the order passed by the High Court.  A  perusal of the order passed by the High Court  would show that the High  Court has not considered the question as to whether the respondent was  gainfully employed or not during the relevant period in question.  The High  Court has also not adverted to the categorical finding recorded by the  Tribunal on this aspect.  The High Court directed the appellant bank to  reinstate the respondent on the post held by him with continuity in service  and that the respondent shall also be entitled to other consequential benefits  to which he is entitled to in accordance with law. The High Court, in our  opinion, without considering the relevant issue has ordered full back wages  with all other consequential benefits which, in our opinion, is not correct.  It is  argued by Mr.K.T.S. Tulsi, learned senior counsel for the appellants that the  respondent-workman has not discharged his burden by adducing any  evidence that he was not  gainfully employed.  He has also now shown any  acceptable material that he was not gainfully employed and, under these  circumstances, ordering full back wages to the respondent by the High Court  without considering the merits of the claim by the bank is not correct and that   the approach made by the High Court in ordering full back wages cannot, at  all, be countenanced in the facts and circumstances of this case.           The argument advanced by learned senior counsel for the appellants  is opposed by the learned senior counsel for the respondent-workman.   According to the learned senior counsel for the respondent, even though the  respondent had reported for duty to the bank he was not allowed to join duty  and, therefore, he cannot be penalised for the mistake committed by the bank  in not permitting the respondent to join the duty.  He also submitted that the  procedure to deal with unauthorised absence of staff members has not been  followed viz. the Bipartite Settlement and codified Circular No.101 of 1993.              Dr.R.G.Padia further submitted that the notice dated 08.09.l992 called  upon the respondent to report for duty within 30 days from the date of  publication of this notice and not 30 days from the date of issue as wrongly  stated in the order of termination.  The respondent had reported for duty on  12.10.1992 which is well within 30 days of the date of service of notice.   Further it is settled position in law that an order shall not be effective unless it  is published and communicated to the officer concerned.  We see much force  in this contention.         In our opinion, the period of 30 days has to be reckoned only from the  date of service of the notice namely, on 14.9.1992.  If that date is taken into  consideration, the respondent has joined the duty well within 30 days namely,  on 12.10.1992.         Dr.Padia further submitted that the Tribunal was wrongly persuaded  by the oral testimony of the witness of the bank which lacked any basis in the  pleadings or prove any form of document.  According to him, the respondent  was not gainfully employed and that the said finding is totally perverse.  It is

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submitted that the bank only prevented the respondent from joining duty and  that the respondent is not at fault and, therefore, he is entitled to full back  wages.           We, therefore, remit the matter to the High Court to consider the  question of payment of back wages for the period in question. We request the  High Court to consider the matter afresh on the question of back wages only.   The appellant bank is also free to hold any departmental enquiry against the  respondent-workman for his absence from duty during the relevant period.   Since the matter is remitted to the High Court on the question of back wages  only, the respondent will  not be entitled for payment of any back wages  during the period in question which will depend upon the ultimate order that  may be passed by the High Court.  The order passed by the High Court  ordering reinstatement shall stand.           It is stated by Dr.R.G.Padia, learned senior counsel that the  respondent has availed some loan from the bank for the purpose of  purchasing a residential house. It is also stated that he has committed default  in payment of instalments of the said loan to the bank.  Since the matter is  remitted back to the High Court, he requested this Court to direct the bank  not to sell the residential house for non-payment of the instalments of the  loan availed by him for the purpose of residential house till the High Court  takes final decision.  The request is accepted.  It is ordered accordingly.         The appeal is accordingly allowed in part as indicated above.  No  costs.