Manager, Bank of Baroda Vs. Anita Nandrajog  INSC 1522 (1 September 2009)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6898
OF 2004 Regional Manager, Bank of Baroda ..
- versus- Anita Nandrajog ..
This appeal has been filed against the impugned judgment of the
Allahabad High Court dated 22.9.2003 in Civil Writ Petition No.36619 of 1996.
Heard learned counsel for the parties and perused the record.
background of the case as mentioned in the writ petition, is that respondent
no.2 was employed in the office of petitioner- Bank on 21.7.1980 as accounts
clerk. Her husband was employed at Libya. She on two occasions i.e. from
4.8.1986 to 29.3.1987 and again from 20.7.1987 to 10.4.1988 i.e. more than 266
days, remained absent from duty, but the petitioner-Bank condoned the aforesaid
acts of absence of leaving the country without permission. Respondent no.2 again
left for Libya with effect from 22.8.1988 without permission and without any
sanction of leave.
She did not turn up to join her duties for more than 150
consecutive days. The petitioner-Bank invoked the provisions of Clause 17(b) of
Fifth Bipartite Settlement dated 10.4.1989 and issued notice to respondent no.2
on 26.6.1989 to report for duty within 30 days, failing which it would be
presumed that she has voluntarily retired from the service of the Bank.
Pursuant to the said letter dated 26.6.1989, it has been alleged that
respondent no.2 failed to report for duty and instead she sent two letters to
the Senior Manager of the Bank at Bareilly, the first letter dated 27.7.1989 in
which she stated that she would be resuming her duty in the last week of August,
1989, and the second letter dated 22.8.1989 requesting for extension of leave
without pay upto April, 1990 on the ground of her domestic problems. Despite
her letter dated 27.7.1989 she did not resume duty in the last week of August
1989. By means of communication dated 25.8.1989, the petitioner-Bank treated
the contesting respondent as having voluntarily 4 terminated her employment,
and asked her to approach the authority concerned for claiming terminal
benefits in the prescribed format.
Aggrieved against the same the respondent approached the Central
Government, Ministry of Labour, who vide Notification under Section 10 of the
Industrial Disputes Act referred the following dispute to the Labour Court for
the action of the management of Bank of Baroda in treating Smt. Anita Nandrajog
as deemed to have voluntarily retired from the services w.e.f. 25.8.1989 is
legal and justified;
what relief she is entitled to?"
Before the Tribunal both the parties led their respective
evidence, documentary as well as oral, and thereafter the Industrial Tribunal
passed an award holding the order 5 dated 25.8.1989 passed by the Bank of
Baroda as illegal and unjustified.
Against the award of the Tribunal the respondent before us filed a
writ petition in the Allahabad High Court which was dismissed by the High Court
and hence this appeal by the Bank by special leave.
The main contention on behalf of the respondent employee before
the Tribunal and High Court was that she was not given any charge sheet nor was
any inquiry held regarding her misconduct of being absent without leave, and
hence the order dated 25.8.1989 was illegal being against the principles of
natural justice. On the other hand, the contention on behalf of the Bank was
that no inquiry was necessary since clause 17(b) of the Fifth Bipartite
Settlement dated 10.4.1989 was being invoked.
Clause 17(b) of the Fifth Bipartite Settlement is as follows :-
"17. Voluntary Cessation of Employment by the Employee The earlier
provision relating to the voluntary cessation of employment by the employee in
the earlier settlement shall stand substituted by the following :
an employee goes abroad and (1) absents himself for a period of 150 days or
more consecutive days without submitting any application for leave, or for its
extension or (2) without any leave to his credit or beyond the period of leave
sanctioned originally/subsequently or when there is is a satisfactory evidence
that he has taken up employment outside India or when the management is
reasonably satisfied that he has no intention of joining duties, the management
may at any time thereafter give a notice to the employee at his last known
address calling upon him to report for duty within 30 days of the date of
notice, stating, inter alia the grounds for coming to the conclusion that the
employee has no intention of joining 7 duties and furnishing necessary
evidence, where available.
the employee reports for duty within 30 days of the notice or gives an
explanation for his absence within the said period of 30 days satisfying the
management that he has no intention of not joining duties, the employee will be
deemed to have voluntarily retired from the bank's service on the expiry of the
said notice. In the even of employee submitting a satisfactory reply, he shall
be permitted to report of duty thereafter within 30 days from the date of the
expiry of the aforesaid notice without prejudice to the bank's right to take
any action under the law or rules of service."
It may be noted that the management had been extremely lenient to
the respondent by condoning her absence on the first occasion from 4.8.1986 to
29.3.1987 that is for a period of over seven months when she was absent without
leave, and then again from 20.7.1987 to 10.4.1988 that is for a period of about
seven months. Thus the respondent was absent for a very long period without
leave. The bank taking a lenient 8 view condoned the absence without leave.
However, it seems that the respondent thought that she could do whatever she
liked and remain absent whenever she liked for whatever period she liked.
She again sent an application dated 22.8.1988 for leave for 60
days, which was not sanctioned. However, she remained absent without leave and
she kept sending letters for extension of leave although she was on
In the Bank's letter dated 26.6.1989 copy of which is as annexure
P-1 to the appeal, it is clearly mentioned in clause 4 that the respondent did
not have any leave remaining to her credit and she had remained on unauthorized
leave for a period of more than 150 days continuously and and it appeared that
she has no intention of 9 joining duty. She was asked to report for duty within
30 days, failing which it would be deemed that she has taken voluntarily
retirement from service. In reply she wrote a letter dated 27.7.1989 that she
will be joining duty by the last week of August, 1989, but again she wrote
another letter dated 22.8.1989 for extension of leave till April, 1990 on
account of domestic problems. In our opinion such a behavior on the part of an
employee is clearly unfortunate and highly improper.
clause 17(b) of the Bipartite Settlement it is clear that if an employee is
absent without leave for more than 150 days and has no more leave to his/her
credit then the Bank can validly order voluntary cessation of employment. Also,
under clause 17(b), when the management is reasonably satisfied that the
employee has no intention of joining duty, it may call upon the employee to
report for duty within 30 days failing which action could be taken under clause
10 In the
present case such a notice was given by the Bank on 26.6.1989 but the
respondent wanted leave till April, 1990 i.e. for another eight months. It is
thus clear that she had no intention of resuming duty within 30 days. Hence we
are of the opinion that the action of the Bank in terminating her service on
the ground of voluntary cessation of employment vide order dated 26.8.1989,
annexure P-4 to this appeal, was valid.
counsel for the appellant has relied on the subsequent clarification of the
Fifth Bipartite Settlement which states :
Cessation of Service :
17 of the settlement will apply only in cases of desertion i.e. where there is
absence from duty without any intimation. If there is an intimation from the
employees but the absence is unauthorized otherwise, the Bank should take
action in terms of disciplinary procedure laid down in previous settlements and
not in terms of clause 17 of the Fifth Bipartite 11 Settlement."
our opinion the above clarification is in fact an amendment to the earlier
clause 17(b) and hence will have no retrospective effect in the absence of any
express intention to that effect. The termination order was passed on 25.8.1989
whereas the above clarification was made in 1990 when the service of the
respondent has already come to an end.
counsel for the respondent submitted that the clarification is retrospective in
nature. We do not agree. In our opinion, we should not go by the nomenclature
and we should see the substance of the matter. A clarification may in reality
be an amendment, while an amendment may in reality be a clarification.
It is not
the nomenclature which matters but the real nature of the rule. In our opinion,
the so-called clarification of January 1990 was in fact an amendment to clause
17(b) because it makes a major change to clause 17 (b). Hence in our opinion it
has no 12 retrospective effect.
behavior of the respondent remaining absent without leave for such long periods
was clearly regrettable and unfortunate. We are fortified by the view we are
taking by the decision of this Court in Syndicate Bank vs. General Secretary,
Syndicate Bank Staff Association 2000(5) SCC 65 as well as the decision in
Punjab & Sind Bank & Ors. vs. Sakattar Singh 2001(1) SCC 214.
establishment can function if it allows its employees to behave in such a
manner. We, therefore, uphold the order of the appellant-Bank dated 25.8.1989
terminating the service of the respondent as a voluntary cessation of her job,
and we set aside the award of the Tribunal dated 5.6.1996 and the impugned
judgment of the High Court dated 22.9.2003. Appeal allowed. No order as to
............................................J. (Markandey Katju)
...........................................J. (Asok Kumar Ganguly)
September 1, 2009.