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2013 Supreme(Bom) 2360
High Court of Judicature at Bombay
M.S. SONAK, J.
State Bank of India
Versus
M.N. Jivnani & Another
Writ Petition No. 86 of 2009
Decided on : 29-11-2013
For the Petitioner:P. Gopalkrishnan i/b Bhave & Co., Advocate.
For the Respondents:Ms. Meena H. Doshi, Advocate.
The main legal point established in the judgment is that under clause 15 of the bipartite settlement, an employee can be deemed to have voluntarily retired if they are absent for an extended period without providing a valid explanation, and there is no requirement for a departmental enquiry in such cases.
Headnote:
Industrial Disputes Act - Absenteeism - Section 17B of the Industrial Disputes Act, 1947 - 15, 16, 25-G of the Industrial Disputes Act, 1947
Fact of the Case:
The respondent, a bank employee, was absent from work for an extended period without providing a valid explanation. The bank issued notices and ultimately deemed the respondent to have voluntarily retired from service.
Finding of the Court:
The court found that the bank's actions were in accordance with the bipartite settlement clause 15, which allowed for deeming an employee to have voluntarily retired after a prolonged unexplained absence. The court held that there was no need for a departmental enquiry and that the bank had not breached principles of natural justice.
Issues: The main issue was whether the bank's actions were in compliance with the relevant provisions of the Industrial Disputes Act and the bipartite settlement.
Ratio Decidendi: The court ruled that the bank's actions were justified under clause 15 of the bipartite settlement, and there was no requirement for a departmental enquiry. The court also emphasized that the principles of natural justice were not breached.
Final Decision: The court set aside the impugned award and ruled in favor of the petitioner, quashing the award and making the rule absolute.
1. Rule was issued in this petition on 16.02.2009 and after record of prima facie findings the award impugned in this petition i.e. award dated 31.08.2007 passed by the Central Government Industrial Tribunal / Labour Court granting Respondent No.1 reinstatement with continuity of service to claim retirement benefits, was stayed. By the same order, this court had granted liberty to the Respondent no.1 to make an application under Section 17B of the Industrial Disputes Act, 1947 ('said Act'). However, no such application has been made by the Respondent No.1 during the pendency of the petition.
2. The facts necessary for the purposes of evaluating the challenges to the impugned award lie in a narrow compass.
3. There is no dispute that the Respondent no. 1 was serving as a cashier cum clerk with the Petitioner bank from 05.08.1982 upto 05.04.1994. Between the period 23.04.1993 and 07.05.1993, the Respondent no. 1 availed leave and left for Japan without furnish of any undertaking that he shall not accept any employment in the foreign country and resume duties upon conclusion of the sanctioned leave period. Upon expiry of leave period however, the Respondent no.1 applied for and was sanctioned sick leave for the period between 10.05.1993 and 19.05.1993. Respondent no.1, upon conclusion of this period once again applied for and was sanctioned earned leave for the period between 20.05.1993 and 18.06.1993. Upon conclusion of this period, Respondent no.1 for a considerable period neither reported for duty nor bothered to apply for any leave. On 20.08.1993 however, the Petitioner received application dated 20.06.1993 requesting for extension of leave. The application was accompanied by a purported medical certificate in Japanese language, which according to the Petitioner was not decipherable. By telegram dated 08.10.1993, the Petitioner called upon Respondent no. 1 to resume duties immediately. In response, the Respondent no.1 once again applied for extension of sick leave by application dated 12.10.1993, again accompanied by a medical certificate in Japanese language. By letter dated 30.10.1993, the Petitioner made it clear that the certificate in Japanese language was not decipherable and the Respondent no.1 ought to have reported for duties since his previous applications for extension of leave had been declined. Despite all this, the Respondent no.1 did not report for duties but addressed a letter dated 13.12.1993, which was received by the Petitioner only on 09.03.1994, once again seeking extension of leave. In the meantime, the Petitioner by Registered A.D. addressed notice dated 02.02.1994 to the Respondent no.1 at his Ulhasnagar address and the Japan address directing him to report for duties immediately and explain the absence without leave. The letters were however returned 'undelivered' by the postal authorities.
4. Faced with such a situation, the Petitioner addressed notice dated 05.03.1994 requiring the Respondent no.1 to report for duty within 30 days from the date of notice, stating therein very clearly that in case the Respondent no.1 fails to do so, he shall be deemed to have voluntarily retired from the services of the bank and shall also be liable to pay to the bank 14 days / one month's pay and allowances in lieu of the notice.
5. The aforesaid notice dated 05.03.1994 was addressed to the Ulhasnagar as well as the Japan address. The notice addressed to Ulhasnagar was returned 'undelivered' by the postal authorities. However, the Respondent no.1 in his deposition before the Industrial Tribunal has admitted the receipt of notice dated 05.03.1994 at Japan. In the circumstances, there can be no serious dispute that the notice dated 05.03.1994 was indeed received by the Respondent no. 1 at Japan.
6. As the Respondent no. 1 failed either to report for duty or even offer any legitimate explanation for such failure, the Petitioner addressed letter / notice dated 24.05.1994 to the effect that the Respondent no.
