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CASE NO.: Appeal (civil) 12795 1996

PETITIONER: PUNJAB & SIND BANK & ORS.

       Vs.

RESPONDENT: SAKATTAR SINGH

DATE OF JUDGMENT:       29/11/2000

BENCH: D.P.Mohapatro, S.N.Phukkan

JUDGMENT:

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     J U D G M E N T

     RAJENDRA BABU, J.  :

     The  respondent  challenged the order  of  termination effected  by means of striking out his name from the  muster roll  of the appellant-Bank by a writ petition filed in  the High  Court of Punjab & Haryana.  The respondent had  joined the  service of the appellant-Bank at Gwalior on  18.04.1978 as    Apprentice   and    was    regularly   appointed    as Clerk-cum-Cashier  with effect from 18.12.1978.  He  claimed that  on  account  of very serious eye ailment he  had  been taking  leave  often and on and he had such ailment even  in the  year 1993-94 and after obtaining a fitness  certificate from  a doctor he submitted his joining report to the Branch Manager  on  04.04.1994 which was not accepted by  him  and, therefore,  he  submitted  an   application  to  the  higher authorities  of  the Bank.  In the meanwhile, however, by  a notice  dated 12.03.1994 the respondent was asked to explain his  unauthorised  absence  after the expiry  of  sanctioned leave.   The  respondent, however, claimed to have  appeared before  the  competent authority to permit him to join  duty but  no order was passed.  On the other hand, an order dated 18.04.1994   came  to  be  passed   informing  him  of   the termination  of  his services in the manner stated  earlier. In  answer  to  the  writ   petition  filed  the  appellants justified  their action by stating that the respondent after proceeding  on leave for three days commencing on 16.08.1993 did  not  report  for  duty  although  communications  dated September 4, 1993, December 17, 1993 and April 15, 1994 were sent  to him and he was called upon to resume his duty.  The appellants   pleaded  that  the   respondent  had   remained unauthorisedly  absent  for  a  period   of  190  days  and, therefore,  made himself liable to be removed from the rolls of  the Bank in terms of Para 17 of the Bipartite Settlement and  Para 522 of the Sastri Award.  The High Court took  the view  that the respondent had put in 16 years of service and his services could not have been dispensed with except after

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inquiry  consistent  with the principles of natural  justice and  the  appellants action in terminating the services  of the respondent is based on a mis-conduct in respect of which no  inquiry  has been held though it was imperative for  the appellants  to  have  served a charge-sheet to him  with  an opportunity  to  file  his  reply,  to  appoint  an  Inquiry Officer,  to  permit  the respondent to adduce  evidence  in support  of  the  allegations  of mis-conduct  and  to  give opportunity  to him to refute such evidence.  The High Court relied  upon  certain  decisions of this  Court.   The  High Court,  therefore, declared that the order striking out  the name  of  the  respondent from the rolls of the  Bank  is  a nullity  due  to the patent violation of the  principles  of natural justice and the appellants order also suffered from many  defects such as non-application of mind to the matter. For the aforesaid reasons, the High Court quashed the orders made  on 18.04.1994 and 12.09.1994, however, making it clear that  it  was  open  to the appellants  to  take  action  in accordance  with the provisions of law and the principles of natural  justice.  As regards wages the High Court  directed that appropriate application could be made to the appellants under the Industrial Disputes Act, 1947.  Hence this appeal. Shri  P.P.   Rao, the learned Senior Advocate appearing  for the  appellants,  submitted  that  under clause  XVI  of  IV Bipartite Settlement the appellants may put to an end to the services  of the respondent even without an inquiry and this clause  had  come up for consideration before this Court  in Syndicate  Bank v.  General Secretary, Syndicate Bank  Staff Association  &  Anr.,  2000 (5) SCC 65, when  on  a  similar charge  a bank employee unauthorisedly absented himself from work  for a period exceeding the prescribed limit of 90 days and  the  bank having served a notice upon him requiring  to submit  his  explanation to join work within the  prescribed period  of  30 days as otherwise he would be deemed to  have retired,  was  held  to  be  good and  such  action  is  not violative  of principles of natural justice and,  therefore, he  submitted  that the view taken by the High Court is  not justified.   The  learned counsel for the respondent,  while supporting  the view taken by the High Court, submitted that a  workman  should know the nature of the complaint  or  the accusation  against  him and should have opportunity to  put forth  his case in the absence of which there cannot be  any fair  or  just decision on the matter.  Even Syndicate  Bank case (supra), he submitted, was decided on the facts of that case  and  there  is no similarity between two  matters  and hence  he  submitted  that  this   appeal  deserved  to   be dismissed.   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 he has no intention  of not  joining  the duty, the employee will be deemed to  have voluntarily retired from the banks 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

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of  the  aforesaid  notice without prejudice to  the  banks 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 any  more and  will  stand  retired from service.  Thus, there  is  no punishment for mis- conduct 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. This  Rule  has  been  incorporated in  an  agreement  where representatives  of employees unions were party.  They also realised  the  futility  of continuing a situation  when  an employee without appropriate intimation to the management is playing   truant.   If  the   respondent  had  submitted  an explanation regarding his unauthorised absence or placed any material  before  the court that he did report for duty  but was  not  allowed  to  join  duty,  inquiry  may  have  been necessitated   but  not  otherwise.   In  this   case,   the employee-respondent  had  defaulted  in   not  offering  any explanation regarding his unauthorised absence from duty nor did  he place any material to show that he reported for duty within  30  days of notice as required by clause XVI  of  IV Bipartite Settlement.  Thus we think that the contention put forward  on  behalf of the respondent that he was  suffering from  serious eye ailment at the relevant time is  difficult of  acceptance.  In the writ petition filed before the  High Court the respondent had stated that in the year 1980 he had a  serious eye ailment and he had been taking leave from the bank  often and on and he had taken leave from 16.08.1993 to 18.08.1993  to  attend  some  urgent  work  which  was  duly sanctioned  but he was struck by eye ailment and, therefore, he  could  not  join his duty as is clear from  the  medical certificate issued to him.  In reply thereto the stand taken by  the appellants is that the record of the respondent does not  disclose  that  he had proceeded on  leave  on  medical advice  for an eye ailment at any time.  Even in the present leave application submitted by him he had stated that he was proceeding on leave to attend some urgent work at Chandigarh while  the  medical  certificate produced before  the  court shows that the same had been issued by a doctor at Amritsar. There is dispute as to when he made available this material. The  stand of the appellants is that this material was  also produced  only after the order of termination had been  made and  in seeking a review of the said order.  The  respondent claimed  that  he had sent several communications  regarding his  illness  or to extend his leave or to rejoin  duty  but there does not appear to be any record with the bank nor the respondent  is  in  a position to produce any proof  of  his having  sent such letters.  We do not also find any material on  record to show that he had reported for duty within  the period indicated in the notice issued in terms of clause XVI of  IV Bipartite Settlement.  In the circumstances, we  find the  High Court had proceeded on an erroneous basis of  non- compliance  with the principles of natural justice,  whereas the true content of the principles of natural justice should have  been  borne  in mind, particularly when there  was  an agreement  between the parties as to the manner in which the situation  should  be  dealt with and the  consequence  that would ensue thereof.

     In  the circumstances, we allow this appeal, set aside

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the  order  made  by  the High Court and  dismiss  the  writ petition   filed  by  the   respondent.   However,  in   the circumstances  of the case, the parties are directed to bear their respective costs.

     ..J.  [ S.  RAJENDRA BABU ]