Manager, Vijaya Bank & Anr Vs. Pramod Kumar Gupta  Insc 535 (24 August 2006)
Ar. Lakshmanan & Tarun Chatterjee
out of SLP(C) No.10809 of 2005) Dr. AR. LAKSHMANAN, J.
learned senior counsel appearing on behalf of the appellants and Dr.R.G.Padia,
learned senior counsel appearing on behalf of the respondent.
appellant before us is the General Manager of Vijaya Bank. The respondent was
employed in the bank as a clerk. According to the bank, he abstained from duty
without any leave application on 12.09.1991. On 13.05.1992, the bank issued
notice directing him to report for duty in 30 days time. On 11.06.1992, the
respondent reported back to duty. Within ten days, i.e., on 21.06.1992, the respondent
again abstained from duty without any prior intimation. On 08.09.1992, the bank
issued second notice to the respondent. A copy of the said notice was also
pasted on the notice board.
said notice dt.08.09.1992 was received by the respondent on 14.09.1992.
to the respondent, when he reports for duty on 12.10.1992, he was not permitted
by the bank since he has not joined duty on 08.10.1992, i.e., within 30 days
from 08.09.1992. The respondent after four years raised a dispute on 01.04.1996.
He protested against the termination. Thereafter, the matter was referred to
the Industrial Tribunal. The Tribunal in para 12 of its order has held as under
:- "The record shows that the concerned workman remained absent from duty
without taking leave and without submitting any application for leave from
12.11.91 to 10.6.92 and from 21.6.92 till the cessation of his employment
according to the provisions of law.
after cessation of his employment in terms of notice dated 8.9.92, he did not
approach higher authorities of the bank for taking him in the services of the
bank. The record shows that he for the first time moved an application to the
General Manager of the bank on 1.4.96 without approaching the higher
authorities against the order treating him to have retired from the service
which was passed by the General Manger of the Bank on 28.11.92. This shows that
the concerned workman was gainfully employed some where and was earning money
from other sources and that is why he kept mum for four years without
approaching higher authorities for getting job again in the bank. Sri Hedge
M.M.1 clearly stated on oath that the brother of the concerned workman was
carrying a business of share broker in a shop in front of Jeoni Mandi Branch of
the bank at Agra and the concerned workman also doing the same business and
profession with his brother and that is why he was not interested in joining
the services of the bank. His evidence on this point goes uncontroverted. The
concerned workman did not suggest to him that he was not carrying on profession
of share broker and the shop of his brother was not in front of the branch of
the bank in which he was carrying on business of share broker.
evidence of M.W.1 on this point appears to be correct and it supports the
contention of the management that the concerned workman was gainfully employed
in other profession and business and that is why he had no intention to join
duties in the bank and remained absent for several months without moving any
application for leave and kept mum for four years even after cessation of his
employment. In these circumstances, the case of the management appears to be
correct that the concerned workman was gainfully employed in other trade or
business and had no intention to join duties of the bank, and the decision of
the bank that he had relinquished and abandoned the service of the bank appears
to be fully justified." In view of the above finding, the Tribunal held
that there is no illegality on the part of the bank in taking action against
the respondent-workman. The Tribunal further held that the action of the
Management in treating the concerned workman to have voluntarily retired from
service of the bank with effect from 08.10.1992 was wholly justified and
lawful. The reference was answered by the Tribunal accordingly.
against the order passed by the Tribunal, the respondent filed a Writ Petition
No.24370/2001 in the High Court of Allahabad. The said petition was allowed on
have carefully perused the order passed by the High Court. A perusal of the
order passed by the High Court would show that the High Court has not
considered the question as to whether the respondent was gainfully employed or
not during the relevant period in question. The High Court has also not
adverted to the categorical finding recorded by the Tribunal on this aspect.
The High Court directed the appellant bank to reinstate the respondent on the
post held by him with continuity in service and that the respondent shall also
be entitled to other consequential benefits to which he is entitled to in
accordance with law. The High Court, in our opinion, without considering the
relevant issue has ordered full back wages with all other consequential
benefits which, in our opinion, is not correct. It is argued by Mr.K.T.S. Tulsi,
learned senior counsel for the appellants that the respondent-workman has not
discharged his burden by adducing any evidence that he was not gainfully
employed. He has also now shown any acceptable material that he was not
gainfully employed and, under these circumstances, ordering full back wages to
the respondent by the High Court without considering the merits of the claim by
the bank is not correct and that the approach made by the High Court in
ordering full back wages cannot, at all, be countenanced in the facts and
circumstances of this case.
argument advanced by learned senior counsel for the appellants is opposed by
the learned senior counsel for the respondent-workman.
to the learned senior counsel for the respondent, even though the respondent
had reported for duty to the bank he was not allowed to join duty and,
therefore, he cannot be penalised for the mistake committed by the bank in not
permitting the respondent to join the duty. He also submitted that the
procedure to deal with unauthorised absence of staff members has not been
followed viz. the Bipartite Settlement and codified Circular No.101 of 1993.
further submitted that the notice dated 08.09.l992 called upon the respondent to
report for duty within 30 days from the date of publication of this notice and
not 30 days from the date of issue as wrongly stated in the order of
termination. The respondent had reported for duty on 12.10.1992 which is well
within 30 days of the date of service of notice.
it is settled position in law that an order shall not be effective unless it is
published and communicated to the officer concerned. We see much force in this
opinion, the period of 30 days has to be reckoned only from the date of service
of the notice namely, on 14.9.1992. If that date is taken into consideration,
the respondent has joined the duty well within 30 days namely, on 12.10.1992.
further submitted that the Tribunal was wrongly persuaded by the oral testimony
of the witness of the bank which lacked any basis in the pleadings or prove any
form of document. According to him, the respondent was not gainfully employed
and that the said finding is totally perverse. It is submitted that the bank
only prevented the respondent from joining duty and that the respondent is not
at fault and, therefore, he is entitled to full back wages.
therefore, remit the matter to the High Court to consider the question of
payment of back wages for the period in question. We request the High Court to
consider the matter afresh on the question of back wages only.
appellant bank is also free to hold any departmental enquiry against the
respondent-workman for his absence from duty during the relevant period.
the matter is remitted to the High Court on the question of back wages only,
the respondent will not be entitled for payment of any back wages during the
period in question which will depend upon the ultimate order that may be passed
by the High Court. The order passed by the High Court ordering reinstatement
stated by Dr.R.G.Padia, learned senior counsel that the respondent has availed
some loan from the bank for the purpose of purchasing a residential house. It
is also stated that he has committed default in payment of instalments of the
said loan to the bank. Since the matter is remitted back to the High Court, he
requested this Court to direct the bank not to sell the residential house for
non-payment of the instalments of the loan availed by him for the purpose of
residential house till the High Court takes final decision. The request is
accepted. It is ordered accordingly.
appeal is accordingly allowed in part as indicated above. No costs.