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KULDEEP TIWARI, J. (ORAL)

1. The instant writ petition assails the award dated 10.07.2002, whereby the Industrial Tribunal, New Delhi, answered the reference in favour of the respondent No.2/employee, holding the order dated 24/26.11.1993, wherethrough the petitioner/bank had declared the employee as deemed to have voluntarily retired from service, to be illegal, and consequently directed his reinstatement with continuity of service and all consequential benefits, including full back wages.

2. The challenge raised by learned counsel for the petitioner/bank is premised primarily upon Clause 17(a) of the Bipartite Settlement. It is submitted that where an employee remains absent from duty for 90 or more consecutive days without submitting any application for leave or for extension thereof, the said clause vests in the bank the authority to issue a notice of 30 days calling upon such employee to report for duty, and upon his failure to comply, to treat him as having voluntarily retired from service. It is contended that the requisite statutory notice under Clause 17(a) was served upon the respondent No.2, and only upon his failure to resume duty within the prescribed period, he was treated as having voluntarily retired.

3. Learned counsel further contends that the Industrial Tribunal erred in interfering with the well-reasoned decision of the bank. The finding that the employee was not served at his given address is assailed as erroneous. It is submitted that the notices were dispatched to the address furnished by the employee himself, and that the bank also undertook service through publication in two daily newspapers. However, these material aspects were not properly appreciated by the Industrial Tribunal, and undue weight was given to the employee’s plea of non-subscription to the newspapers. It is urged that the bank cannot be expected to tailor service based on the employee’s personal newspaper subscriptions.

4. It is further submitted that the employee was a habitual absentee, having availed 1,363 days of leave without pay, and had remained continuously absent for over 90 days, thereby justifying the action taken by the bank under Clause 17(a). It is, therefore, contended that the past conduct of the employee, coupled with the satisfaction recorded in the statutory notices that he was engaged in business and had no intention to resume duties, justified the bank’s decision to declare him to be deemed to have voluntarily retired from service by invoking Clause 17(a). Accordingly, interference by the Industrial Tribunal was unwarranted.

5. Per contra, learned counsel for the respondent No.2/employee, relying on Clause 17(a), submits that the said provision mandates the bank to record a satisfaction that the employee has no intention of resuming duty. It is submitted that, in the present case, the employee had, in fact, reported to the bank on 10.12.1993, expressed his willingness to resume duties, and placed on record his medical documents demonstrating that his prolonged absence was attributable solely to his health condition. It is further submitted that the statutory notices were never actually served upon the employee, and that even the order dated 24/26.11.1993 was communicated to him only upon his reporting on 10.12.1993. It is, therefore, urged that the reference has rightly been answered in favour of the employee.

6. This Court has heard learned counsel for the parties and made a studied survey of the record.

7. A perusal of the impugned award reveals that it has been anchored on the hereinafter summarized grounds: -

(i) The statutory notices issued to the employee were returned unserved;

(ii) The employee had submitted a leave application (Ex. W1), reported to the branch on 10.12.1993 to resume duty, and also produced his medical certificate (Ex. W2);

(iii) Neither the 30-day statutory notice nor the order dated 24/26.11.1993 disclosed any material or evidence to sustain the conclusion that the employee had ta