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2020 Supreme(Mad) 41
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. RAVICHANDRABAABU, J.
The Management, ICICI Bank Limited, ICICI Bank Towers, Mumbai & Others - Petitioners
Versus
The Presiding Officer, Central Government Industrial Tribunal cum Labour Court, Chennai & Others - Respondents
W.P. No. 7556 & 26647 of 2013
Decided On : 14-02-2020
Sanjay Mohan for M/s. Ramasubramaniam Assoc., K. Krishnamoorthy, Advocates, V. Prakash, Senior Counsel
Headnote:
Constitution of India,1950 - Article 226 - Industrial Disputes Act - Sections 25F, 25G and 25H - I.D. Act, 1947 - Section 2(oo) – Tamilnadu Shops and Establishments Act, 1947 - Section 41(1) - Bank of Madura Limited was merged with ICICI Bank - All employees and officers who were on rolls of Bank of Madura Ltd were taken on rolls of ICICI Bank on terms and conditions applicable to them while they were working in Bank of Madura Ltd - From date of amalgamation ICICI Bank became employer of second respondents respondent was a Clerk on rolls erstwhile Bank of Madura - He suffered from numerous ailments which affected his ability to perform his duties - Citing those infirmities second respondent was continuously absent from duty between date of his termination which was for nearly three Management taking into consideration of his predicament and record of service have been most considerate - In addition to sanctioning leave till on his request each and every time petitioner paid medical expenses incurred by second respondent as well unmindful of the difficulties caused by his absence second respondent applied for further leave –Held, Employees Pension Scheme Regulation so that the employee would get the benefit of pension from date of his attaining age of superannuation date on which he would have retired had he continued in the employment - Since this court has found that the Bank was right in not continuing his employment due to his continued ill health employee is not entitled to the relief of reinstatement with back wages as claimed in his writ petition service respondent Bank in and continued to work without any room for any complaint till unfortunately he suffered heart attack Therefore it is evident that rendered his service to Bank with unblemished record - His unfortunate ill health made him suffer continuously and resulted in not attending the work for This continued service employee cannot be ignored without adequately giving some relief to him simply by sending him out with an order of discharge Employees Pension Regulation which is provided before this Court for its perusal said Regulations Regulation deals with definition of retrenchment which includes cessation from Bank’s service on voluntary retirement in accordance with provisions contained in Regulation and Voluntary Retirement Scheme in terms of subject to provisions contained in Regulation and Regulation employee who has completed service in the Bank and who has retired subsequent to the expiry of the Scheme mentioned in Circular shall be deemed and considered to have retired under Voluntary Retirement Scheme - Likewise Regulation deals with pension to employees retiring Voluntary Retirement Scheme wherein it is contemplated that such persons shall be eligible for pension from attaining age of superannuation - Therefore court find that employee must be treated as person as voluntarily retired relevant scheme – petition allowed
JUDGMENT :
(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records connected with I.D.No.18 of 2011 on the file of the first respondent and to quash the award dated 30.11.2012 insofar as modifying the order of discharge as to compulsory retirement passed by the first respondent.)
W.P.No.7556 of 2013:-
1. The Management is the writ petitioner. Challenge made in this writ petition is against the award of the Labour Court dated 30.11.2012, modifying the order of discharge as to compulsory retirement of the second respondent.
2. The case of the Management is as follows:
The Bank of Madura Limited was merged with ICICI Bank on March 10, 2001. All the employees and officers, who were on the rolls of Bank of Madura Ltd., were taken on the rolls of ICICI Bank on the terms and conditions applicable to them, while they were working in Bank of Madura Ltd. From the date of amalgamation, ICICI Bank became the employer of the second respondent. The second respondent was a Clerk on the rolls of the erstwhile Bank of Madura. He suffered from numerous ailments which affected his ability to perform his duties. Citing those infirmities, the second respondent was continuously absent from duty between 04.09.2006 till the date of his termination viz., 25.06.2009, which was for nearly three years. The Management, taking into consideration of his predicament and record of service, have been most considerate. In addition to sanctioning leave till 25.06.2009, on his request each and every time, the petitioner paid the medical expenses incurred by the second respondent as well, unmindful of the difficulties caused by his absence. On 17.06.2009, the second respondent applied for further leave. However, in the light of his continuous ill health, as established by his own medical certificates showing that he was suffering from Cardiac disease and hypertension, and seeing no sign of his condition improving for returning to work, the Management was compelled to discharge him from service on the grounds of continued ill health, vide letter dated 25.06.2009. The Management paid a sum of Rs.87,690/-, being his salary in lieu of notice period. The second respondent challenged the order of discharge by alleging that it amounted to retrenchment and thus, is in violation of Sections 25F, 25G and 25H of the Industrial Disputes Act. The petitioner Management resisted the claim by contending that discharge of an employee will not constitute retrenchment, if done on the ground of continued ill health. It was also contended that since the discharge itself cannot be brought under the definition of retrenchment, Sections 25F, 25G and 25H of the Act do not apply to the present case. The second respondent’s medical certificates produced for the period between 04.09.2006 and 25.06.2009 establish the fact that he was suffering from continued unabated ill health and that his continued absence had already caused inconvenience to the bank. The Labour Court, however passed the award, even though it has found that it is a fit case for discharge on the ground of continued ill health.
3. No counter affidavit is filed by the second respondent/employee. However, the matter is contested by him through his counsel.
W.P.No.26646 of 2013:
4. This writ petition is filed by the employee, who is the second respondent in W.P.7556 of 2013. Challenge made in this writ petition is against the very same award of the Labour Court insofar as not granting the relief of reinstatement with full back wages, continuity of service and all other attendant benefits with a consequential direction to the respondent bank to reinstate the employee with full back wages, continuity of service and all other attendant benefits.
5. The case of the employee is as follows:
He joined the service of the petitioner Bank of Madura on 04.02.1980 as a Clerk. He had been working without any blemish. The Bank of Madura got merged with the second responde
