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2015 Supreme(HP) 791
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir and Dharam Chand Chaudhary, JJ.
Sanjeev Aggarwal - Appellant
Versus
Regional Manager, State Bank of India and others - Respondents
LPA No. 126 of 2007
Decided On : 30.7.2015
Advocate Appeared:
For the appellant :Mr. Onkar Jairath, Advocate.
For the respondents:Mr. Anand Sharma, Advocate, for respondent No.1.
Mr. Ashok Sharma, Assistant Solicitor General of India, with Mr. Ajay Chauhan, Advocate, for respondents No.2 and 3.
The main legal point established in the judgment is that the procedure outlined in the Memorandum of Settlement for voluntary retirement must be followed, and the principles of voluntary retirement as laid down by the Supreme Court must be applied in such cases.
Headnote:
Voluntary Retirement - Employment Dispute - Clause XVI of the Memorandum of Settlement dated 17th September, 1984 - Summary of the relevant acts and sections: Clause XVI of the Memorandum of Settlement dated 17th September, 1984 - The judgment discusses the interpretation and applicability of the said Settlement, and the principles of voluntary retirement as laid down in various judgments of the Supreme Court.
Fact of the Case:
The appellant, a bank employee, was treated as voluntarily retired from the service of the bank. The dispute arose regarding the legality of this action, and the appellant challenged the decision through a Civil Writ Petition.
Finding of the Court:
The Tribunal and the learned Single Judge did not adequately consider the mandate of Clause XVI of the Memorandum of Settlement, which outlines the procedure for voluntary retirement. The court found that the Tribunal had erred in not deciding the reference in the right perspective and failed to apply the relevant legal principles.
Issues: The key issues were whether the bank's action of treating the appellant as voluntarily retired was legally correct, whether the bank had complied with the mandate of the Bipartite Settlement, and whether an inquiry was necessary before the order of voluntary retirement.
Ratio Decidendi: The court held that the Tribunal had failed to consider the relevant clause of the Memorandum of Settlement and had not applied the principles of voluntary retirement as established by the Supreme Court in various judgments. The court emphasized the importance of recording satisfaction and following the prescribed procedure before deeming an employee to have voluntarily retired.
Final Decision: The impugned judgment was set aside, and the award made by the Tribunal was quashed with a direction to decide the matter afresh within two months.
Mansoor Ahmad Mir, J.
This Letters Patent Appeal is directed against the judgment and order dated 28.5.2007, passed by the learned Single Judge of this Court in CWP No. 1775 of 2002 titled Sanjeev Aggarwal versus Regional Manager S.B.I. and others, whereby the writ petition came to be dismissed, for short “the impugned judgment.”
2. The appellant has questioned the impugned judgment on the grounds taken in the memo of appeal.
3. In order to determine the controversy, it is necessary to give brief facts of the case which have given birth to the instant appeal.
4. It appears that appellant was appointed as Clerk-cum-Cashier by the bank-respondent No.1 herein in December, 1983, remained absent from duty and was treated to have voluntary retired from the service of the bank-respondent No.1 with effect from 7.8.1988.
5. A dispute was raised by the appellant and reference was made by the concerned authorities dated 4.12.1990, the details of which are given in the award made by the Central Government Industrial Tribunal-cum-Labour Court, dated 16.7.2002, hereinafter referred to as “the Tribunal”, for short,. The Tribunal entered into the reference. The appellant filed statement of claim wherein he has pleaded and averred that he fell sick in the month of August, 1988 and was constrained to go on leave, submitted the leave application alongwith medical certificates. Thereafter he was declared fit to resume duties by the doctor and accordingly on 25.3.1989, he was on his way to report duty but met with an accident and he informed the Branch Manager about the said accident and sent leave application, was advised by the doctor bed rest from 24.3.1989 to 4.6.1989. He submitted all the applications and documents alongwith leave application to the bank authorities and reported back on 5.6.1989 but he was not allowed by the bank to join duty and he was told that he has been treated as having voluntarily retired from the service in terms of the provisions of Bipartite Settlement and as per the rules occupying the field.
6. The bank authorities-management also filed counter to the statement of claim filed by the appellant, details of which are given in para 3 of the award.
7. The Tribunal, after examining the reference, pleadings and evidence adduced by both the parties mention of which is made in para 4 of the award, held that the action of the management was legal one and upheld the voluntary retirement of the appellant from the service w.e.f. 7.8.1988.
8. Feeling aggrieved, the appellant has questioned the impugned award by the medium of Civil Writ Petition No.1775 of 2002, which came to be dismissed vide impugned judgment dated 28.5.2007 referred to above.
9. We have heard the learned counsel for the parties.
10. Following questions arise for determination in this appeal.
(i) Whether the order of the Bank-respondent No.1 treating the appellant as voluntary retired from the service of the bank w.e.f. 7.8.1988 in terms of the Bipartite settlement, is legally correct?
(ii) Whether the bank-respondent No.1 had applied and complied with the mandate of the said Bipartite Settlement?
(iii) Whether, without conducing an inquiry, the order of voluntary retirement can be said to be a legal and valid order, in the eyes of law?
11. In order to answer these questions, it is necessary to reproduce the relevant portion of clause XVI of the Memorandum of Settlement dated 17th September, 1984 between the Managements of 55 ‘A’ Class Banks as represented by the Indian Banks’ Association and their workmen as represented by the All India Bank Employees’ Association and the National Confederation of Bank Employees herein.
“XVI.VOLUNTARY CESSATION OF EMPLOYMENT BY THE EMPLOYEES:
In supersession of clause 2 of the Settlement dated 8th September, 1983 the following shall apply:-
Where 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
