1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6898 OF 2004

Regional  Manager,  Bank of  Baroda

.. Appellant

- versus-

Anita  Nandrajog

..

Respondent

J U D G M E N T

MARKANDEY KATJU, J.

2

1. This appeal has been filed against the impugned judgment of the Allahabad High  

Court dated 22.9.2003 in Civil Writ Petition No.36619 of 1996.

2. Heard learned counsel for the parties and perused the record.

23. The  brief  background  of  the  case  as  mentioned  in  the  writ  petition,  is  that  

respondent  

no.2  was  

employed  

in  the  

office  of  

petitioner-

Bank  on  

21.7.1980  

as  

accounts clerk.  Her husband was employed at Libya.  She on two occasions i.e. from  

4.8.1986 to 29.3.1987 and again from 20.7.1987 to 10.4.1988 i.e. more than 266 days,  

remained  absent  from duty,  but  the  petitioner-Bank  condoned  the  aforesaid  acts  of  

absence  of  leaving the country without  permission.   Respondent  no.2 again left  for  

Libya with effect from 22.8.1988 without permission and without any sanction of leave.

3 She  did  not  turn  up  to  join  her  duties  for  more  than  150  consecutive  days.   The  

petitioner-Bank invoked the provisions of Clause 17(b)  of Fifth Bipartite Settlement  

dated 10.4.1989 and issued notice to respondent no.2 on 26.6.1989 to report for duty  

within 30 days, failing which it would be presumed that she has voluntarily retired from  

the service of the Bank.  Pursuant to the said letter dated 26.6.1989, it has been alleged  

that  respondent no.2 failed to report  for duty and instead she sent two letters to the  

Senior  

Manager  

of  the  

Bank  at  

Bareilly,  

the  first  

letter dated  

27.7.1989  

in  which  

she stated that she would be resuming her duty in the last week of August, 1989, and the  

second letter dated 22.8.1989 requesting for extension of leave without pay upto April,  

1990 on the ground of her domestic problems. Despite her letter dated 27.7.1989 she did  

not resume duty in the last week of August 1989. By means of communication dated  

25.8.1989, the petitioner-Bank treated the contesting respondent as having voluntarily

4 terminated her  employment,   and asked her  to approach the authority concerned for  

claiming terminal benefits in the prescribed format.    

4. Aggrieved against the same the respondent approached the Central Government,  

Ministry of Labour, who vide Notification under Section 10 of the Industrial Disputes  

Act referred the following dispute to the Labour Court for adjudication :

“Whether the action of the management of Bank of Baroda in  treating Smt. Anita Nandrajog as deemed to have voluntarily  retired from the services w.e.f. 25.8.1989 is legal and justified;  if not what relief she is entitled to?”

5. Before the Tribunal both the parties led their respective evidence, documentary as  

well as oral, and thereafter the Industrial Tribunal passed an award holding the order

5 dated 25.8.1989 passed by the Bank of Baroda as illegal and unjustified.

6. Against the award of the Tribunal the respondent before us filed a writ petition in  

the Allahabad High Court which was dismissed by the High Court and hence this appeal  

by the Bank by special leave.   

7. The  

main  

contention  

on  behalf  

of  the  

respondent  

employee  

before  the  

Tribunal  

and High Court was that she was not given any charge sheet nor was any inquiry held  

regarding her  misconduct  of  being absent  without  leave,  and hence the order  dated  

25.8.1989 was illegal being against the principles of  natural justice.  On the other hand,  

the contention on behalf  of the Bank was that no inquiry was necessary since  clause  

17(b) of the Fifth Bipartite Settlement dated 10.4.1989 was being invoked.  

6 8. Clause 17(b) of the Fifth Bipartite Settlement is as follows :-

“17. Voluntary Cessation of Employment by the Employee  The  earlier  provision  relating  to  the  voluntary  cessation  of  employment  by  the  employee  in  the  earlier  settlement  shall  stand substituted by the following :  

(a).....................

(b) When an employee goes abroad and (1) absents himself for  

a  period  of  150  days  or  more  consecutive  days  without  submitting any application for leave, or for its extension or (2)  without any leave to his credit or beyond the period of leave  sanctioned  originally/subsequently  or  when  there  is  is  a  satisfactory evidence that he has taken up employment outside  India or when the management is reasonably satisfied that he  has no intention of joining duties, the management may at any  time thereafter give a notice to the employee at his last known  address calling upon him to report for duty within 30 days of  the date of notice, stating, inter alia the grounds for coming to  the conclusion that  the employee has no intention of  joining

7 duties  and  furnishing  necessary  evidence,  where  available.  Unless  the  employee  reports  for  duty  within  30  days  of  the  notice or gives an explanation for his absence within the said  period of  30 days satisfying the management  that  he has no  intention of not joining duties, the employee will be deemed to  have voluntarily retired from the bank's service on the expiry of  the  said  notice.   In  the  even  of  employee  submitting  a  satisfactory  reply,  he  shall  be  permitted  to  report  of  duty  thereafter  within 30 days  from the date  of  the expiry of  the  aforesaid notice without  prejudice to the bank's right  to take  any action under the law or rules of service.”

 9. It  may  be  noted  that  the  management  had  been  extremely  lenient  to  the  

respondent by condoning her absence on the first occasion from 4.8.1986 to 29.3.1987  

that is for a period of over seven months when she was absent without leave, and then  

again from 20.7.1987 to 10.4.1988 that is for a period of about seven months.  Thus the  

respondent was absent for a very long period without leave. The bank taking a lenient

8 view condoned the  absence without  leave.   However,  it  seems that  the respondent  

thought that she could do whatever she liked and remain absent whenever she liked for  

whatever period she liked.  

10. She again sent an application dated 22.8.1988 for leave for 60 days, which was  

not  sanctioned.   However,  she  remained absent  without  leave and she  kept  sending  

letters  for  

extension  

of  leave  

although  

she was on  

unauthorized absence.   

11. In the Bank's  letter  dated 26.6.1989 copy of  which is  as  annexure P-1 to  the  

appeal, it is clearly mentioned in clause 4 that the respondent did not have any leave  

remaining to her credit  and she had remained on unauthorized leave for a period of  

more  than  150  days  continuously  and  and  it  appeared  that  she  has  no  intention  of

9 joining duty.  She was asked to report for duty within 30 days, failing which it would be  

deemed that she has taken voluntarily retirement from service.  In reply she wrote a  

letter dated 27.7.1989 that she will be joining duty by the last week of August, 1989,  

but again she wrote another letter dated 22.8.1989 for extension of leave till April, 1990  

on account of domestic problems.  In our opinion such a behavior on the part of an  

employee is clearly unfortunate and highly improper.   

12.

Under  

clause  

17(b)  of  

the  

Bipartite  

Settlement  

it  is  clear  

that if an employee is absent without leave for more than 150 days and has no more  

leave  to  his/her  credit  then  the  Bank  can  validly  order  voluntary  cessation  of  

employment.  Also, under clause 17(b), when the management is reasonably satisfied  

that the employee has no intention of joining duty, it may call upon the employee to  

report for duty within 30 days failing which action could be taken under clause 17(b).

10 In  the  present  case  such  a  notice  was  given  by  the  Bank  on  26.6.1989  but  the  

respondent wanted leave till April, 1990 i.e. for another eight months.  It is thus clear  

that she had no intention of resuming duty within 30 days.  Hence we are of the opinion  

that  the  action  of  the  Bank  in  terminating  her  service  on  the  ground  of  voluntary  

cessation of employment vide order dated 26.8.1989, annexure P-4 to this appeal, was  

valid.   

13.

Learned  

counsel  

for  the  

appellant  

has  relied  

on  the  

subsequent  

clarification of the Fifth Bipartite Settlement which states :

“Voluntary Cessation of Service :

1(1)Clause  17  of  the  settlement  will  apply  only  in  cases  of  desertion  i.e.  where  there  is  absence  from duty  without  any  intimation.   If there is an intimation from the employees but  the absence is  unauthorized otherwise,  the Bank should take  action in terms of disciplinary procedure laid down in previous  settlements and not in terms of clause 17 of the Fifth Bipartite

11 Settlement.”

14. In our opinion the above clarification is in fact an amendment to the earlier clause  

17(b) and hence will have no retrospective effect in the absence of any express intention  

to  that  effect.   The  termination  order  was  passed  on  25.8.1989  whereas  the  above  

clarification was made in 1990 when the service of the respondent has already come to  

an end.     

15.

Learned  

counsel  

for  the  

respondent  

submitted  

that  the  

clarification is retrospective in nature.  We do not agree.  In our opinion, we should not  

go by the nomenclature and we should see the substance of the matter.  A clarification  

may in reality be an amendment, while an amendment may in reality be a clarification.  

It is not the nomenclature which matters but the real nature of the rule.  In our opinion,  

the so-called clarification of January 1990 was in fact an amendment to clause 17(b)  

because it makes a major change to clause 17 (b).  Hence in our opinion it  has no

12 retrospective effect.   

   16. The behavior  of  the respondent  remaining absent  without  leave for  such long  

periods was clearly regrettable and unfortunate.  We are fortified by the view we are  

taking  by  the  decision  of  this  Court  in  Syndicate  Bank  vs.   General  Secretary,  

Syndicate Bank Staff Association 2000(5) SCC 65 as well as the decision in Punjab  

&  Sind  

Bank  &  

Ors.  vs.  

Sakattar  

Singh  

2001(1)  

SCC  214.  

No  

establishment can function if it allows its employees to behave in such a manner.  We,  

therefore,  uphold  the  order  of  the  appellant-Bank  dated  25.8.1989  terminating  the  

service of the respondent as a voluntary cessation of her job, and we set aside the award  

of the Tribunal dated 5.6.1996 and the impugned judgment of the High Court dated  

22.9.2003.  Appeal allowed.  No order as to costs.  

13

............................................J. (Markandey Katju)

...........................................J.      (Asok Kumar Ganguly)

New Delhi;

September 1, 2009.