Important point
Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bonafide act on the part of the workman.

Headnote:Labour Law—Industrial Disputes Act, 1947—Section 17B—Banking service—Discharge from service according to bepartite settlement—Appellant was working as a Cashier-cum-Clerk with the J&K Bank Ltd.—He was transferred to Kolkata on 2.4.1981 but he did not join the said office—Taking a lenient view, he was transferred to Amritsar and then to Samba on a representation having been made in this behalf—He later on was transferred to Amritsar again where he joined on 29.7.1982—A leave for a period of 28 days was sought for and sanctioned in favour of the workman—Yet again an application was filed seeking leave although he had only 25 days accumulated leave to his credit—Despite the expiry of the period of leave in June 1993, appellant did not report back for duties—Show cause notice to explain his unauthorized leave or he would be deemed to have been discharged from services of the Bank—He again applied for grant of leave on medical ground—A memorandum was served on 20.2.1984, pursuant whereto he again requested for sanctioning of leave—His services were dispensed with—Order challenged by appellant after a long time—Order of reinstatement holder order of dismissal in breach of bipartite settlement—Whether considering facts and circumstances of the case, Bank was justified in holding that the workman had no intention of joining his duties—(Yes).
Held : What fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to joint his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates. The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either : (1) report for duties within thirty days; (2) give his explanation for his absence satisfying the management that he has not taken any employment or avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his duties within thirty days or fails to file a satisfactory explanation, as referred to hereinbefore, the legal fiction shall come into force. In the instant case except for asking for grant of medical leave, he did not submit any explanation for his absence satisfying the management that he has not taken up any other employment or avocation and that he has no intention of not joining his duties. In the aforementioned fact situation we do not see any reason as to why the Bank could not arrive at a satisfaction that the workman had no intention to join his duties. It is interesting to note that though the said order was passed on 17.5.1984, a representation to the Bank was made by the workman to reconsider the said decision after a period of 3 years and 2 months by a letter dated 31.7.1987. (Paras 14 to 16)
It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of natural justice. (Para 20)

Judgment

S.B. Sinha, J.—These two appeals arising out of a common judgment and order dated 10.2.2003 passed by the High Court of Jammu & Kashmir at Jammu were taken up for hearing together and are being disposed of by this common judgment.

2. Interpretation of a bipartite settlement dated 8.9.1983 is in question in these appeals which arise out of the aforementioned judgment and order passed by a Division Bench of the said court dismissing an appeal preferred by the Jammu & Kashmir Bank Ltd. (hereinafter referred to as ‘the Bank’), affirming a judgment and order dated 15.12.1999 passed by a learned Single Judge of the said court whereby and whereunder an award dated 4.10.1995 passed by the Central Government Industrial Tribunal-cum-Labour Court, Chandigarh, directing the workman to be reinstated in service with the benefit of past service without any back wages had not been interfered with.

3. The workman was working as a Cashier-cum-Clerk with the Bank. He was transferred to Kolkata on or about 2.4.1981; but he did not join the said office or before 14.4.1981, when he was supposed to do so. On his failure to report to Kolkata office by 14.4.1981, a notice was issued by the Bank on 22.6.1981 asking him to show cause as to why disciplinary proceedings should not be initiated against him. Taking however a lenient view, he was transferred to Amritsar on 6.8.1981 and then to Samba on a representation having been made in this behalf. He later on was transferred to Amritsar again. He joined Amritsar Branch on 29.7.1982. A leave for a period of 28 days was sought for and sanctioned in favour of the workman on an application made therefor by him on or about 9.10.1982. A further leave of 9 days was sanctioned by an order dated 17.11.1982. Yet again he filed an application seeking leave for one month on 19.5.1983; although he had only 25 days accumulated leave to his credit and his leave account had already been deducted by 50 days’ medical leave.

4. A bipartite settlement was entered into by and between the management of 58 Banks including the Appellant-Bank herein and their workmen; clause 2 whereof is as under:

“2. Voluntary Cessation of employment by the employees.

Whereas an employee has not submitted any application for leave and absents himself from work for a period of 90 or more consecutive days without or beyond any leave to his credit or absents himself for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended and where there is satisfactory evidence that he has taken up employment in India and the management is satisfied that he has no present intention of joining duties, the management may at any time thereafter give a notice, to the employee’s last known address calling upon the employee to report for duty within 30 days of the notice stating, inter alia, the grounds for the management coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the management that he has not taken up another employment or avocation and 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 event of the employee submitting a satisfactory reply, he shall be permitted to report for 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.”

5. Despite the expiry of the period of leave in June 1983, the workman did not report back for duties, whereupon the Branch Manager, Amritsar, informed him by a letter dated 2.11.1983 that he should rejoin his duties, which was not complied with. An explanation was sought for from him by Memorandum dated 2.11.1983 whereby and whereunder he was asked to show

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2005 Supreme(SC) 765

Important pointMere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bonafide act on the part of the workman.

Cases Referred (5)

Important point
Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bonafide act on the part of the workman.