Manager,Central Bank of India Vs. Vijay Krishna Neema & Ors.  INSC
705 (8 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2242 OF 2009 (Arising
out of SLP (C) No.2369 of 2007) The Regional Manager, Central Bank of India ...
Appellant Versus Vijay Krishna Neema & Ors. ... Respondents
S.B. Sinha, J.
of Clause 16 of the Shastri Award is in question in this appeal which arises
out of a judgment and order dated 16.10.2006 passed by a Division Bench of the
High Court of Madhya Pradesh at Indore in Writ Appeal No.322 of 2006 whereby
and whereunder a judgment and order dated 29.10.2004 passed by a learned Single
Judge of the said Court in writ petition No.521 of 2004 was affirmed.
has admittedly been in employment of the appellant bank since 1973. On or about
22.7.1986, he had taken four days' leave upto 25.7.1986. He extended his leave
from 26.7.1986 to 1.8.1986. He neither joined his services nor filed any
further application for extension of leave.
Two memos dated
4/5.8.1986 and 18.8.1986 were issued. A letter dated 13.10.1986 was thereafter
issued which was returned to the bank with an endorsement `Refused'. The said
letter reads as under :
to our office letters dated 5.8.1986, 18.8.1986 requesting to submit proper
leave application and reasons of remaining absent from the Bank.
Mr. V.K. Neema has
not submitted any application after 2.8.1986 and reasons of his remaining
absent from the duties.
Mr. V.K. Neema is
hereby advised to report for duties immediately and submit the reasons of his
absence from the bank. Within three days, failing which disciplinary action
will be taken against him."
he did not join his duties, a show-cause notice dated 9.2.1987 was issued as to
why a disciplinary proceeding shall not be initiated against him, stating :
Shri V.K. Neema Clerk is drawn that he applied for 4 days leave from 22.7.86
to 3 25.7.86 and thereafter extended the leave for 26.7.86 to 1.8.86. After
expiry of the said period Shri V.K. Neema, neither reported for duty nor submitted
any leave application for any reason whatsoever.
Vide our letters
dated 5.8.86, 18.8.86 and 13.10.86 Mr. Neema was advised to report for duty
immediately and to submit the reasons of his absence from the bank within days
Mr. V.K. Neema did not comply with the instruction and he refused to accept our
letter dated 13.10.1986 which was sent at his residence address by Regd. Post.
In the circumstances,
Bank has reason to believe that he has no intention of continuing in the
services of the Bank. However, he is once again called upon to report for duty
at our Branch within 30 days of this letter and submit his explanation for his
unauthorized absence from 2.8.86. If he fails to report for duty within the
period stipulated above, it will be deemed that he has voluntarily retires from
the service of the Bank on the expiry of said period of 30 days and his name
will be struck off from the Rolls of the Bank, and the bank will take suitable
action to recover its dues."
filed a representation upon receipt of the said notice.
reason of an order dated 6.4.1987, respondent was informed that he had ceased
to be in the bank's employment with effect from 9.3.1987 having voluntarily
abandoned the service.
respondent had taken some loan from the bank, he had shifted from 192, Jawahar
Marg, Indore to 62, Vandana Nagar, Indore. A recovery suit was filed by the
bank wherein the address of the respondent was stated as 62, Vandana Nagar,
also preferred an appeal on 2.5.1987 against the said order dated 6.4.1987. He
thereafter filed a writ petition before the High Court of Madhya Pradesh,
Indore Bench, Indore which was marked as W.P.586 of 1988. By reason of an order
dated 22.4.1997, the said writ petition was disposed of by the High Court,
"However, it has
not been disputed before me, that Annexure-G, an appeal has not been disposed
of by the Respondents in accordance with law. It has further not been disputed
that against the Order passed by Respondents (Annexure-A and E), an appeal
would lie to Zonal Manager in terms of clause 19.14 of the Bi-partite
The High Court opined
totality of the circumstances, as mentioned above, I deem it fit to direct the
Respondents to treat Annexure-G/dt.2.5.1987, as an appeal, addressed to Zonal
Manager of Respondent No.1, in terms of Clause 19.14 of Bipartite Settlement,
and direct the Respondent No.1 to place it before the Zonal Manager for
deciding the same in accordance with law on 5 merits, as expeditiously as may
be possible. It is expected to the Respondents to consider all points raised by
Petitioner in Memo of Appeal and that the same would be decided by a reasoned
In case Petitioner
makes a prayer for personal hearing, then, the same be also considered in the
light of Rules and Regulations applicable the service condition of Petitioner
and also in the light of peculiar facts and circumstances of the case."
thereto or in furtherance thereof, the appellate authority treated the appeal
preferred before the Deputy General Manager, Zonal Office, Bhopal as a
departmental appeal. He was given an opportunity of hearing. The Appellate
Authority by an order dated 24.10.1997 dismissed the said appeal, opining :
of the applicant that all written communications were determinately (sic) to
the where he was not residing is not acceptable. From the fact that the
appellant has availed housing loan facility from the Bank, it cannot be
construed that he started residing there, unless there was specific information
to Bank about the usage of house.
Besides, the fact and
reason of the letters were not accepted by him he was aware of various
communication intimation from the Branch.
further observe that issuance of show cause notice dated 9.2.87 by the Branch
Manager was in order having been issued in the capacity of administrative need.
It does not therefore, amount to violation whatsoever.
6 The termination of
the petitioner's service, it is observed, was in accordance with the provisions
of Bi-partite settlement. As such, non-conduct of departmental authority does
not vitiate the action taken thereto."
second writ petition was filed by the respondent questioning the legality
and/or validity of the said order. By reason of a judgment and order dated
29.10.2004, a learned Single Judge of the said Court allowed the writ
application, inter alia, opinining :
"From the above
factual position, it is clear that there was a 236 days leave in the credit of
the petitioner, it cannot be inferred safely that the notice was served to the
petitioner and he was afforded an opportunity of hearing or submitting any
explanation. It is further clear from the facts that the petitioner had an
explanation about his absence on account of his ailment he had 236 days leave
in his credit. In such circumstances the rule of natural justice cannot be
It was furthermore
"From the above
discussion it is clear that the petitioner has in his credit 236 days leave. He
further has an explanation to put forth before the management with regard to
his ailment which was supported by the medical certificate. He has also
submitted an application for his change of address 62, Vandana Nagar, Indore.
Admittedly, on this address the notice was not sent by the Bank. The Bank has
not tried to serve the notice personally to 7 the petitioner. In such
circumstances the rule of natural justice cannot be ruled out and it cannot be
said and the decision of the Bank with regard to abandonment of service
voluntarily has rightly been taken after compliance of the rule of natural
The writ petition was
allowed, directing :
order Annexure - P/5 dated 6.4.1987 by which it is held that the petitioner
ceased to be in Bank employment with effect from 9.3.1987 and the appellate
order Annexure P/16 dated 24.10.1997 are hereby quashed.
In consequence the
petitioner be deemed to be in service with the Bank. It is further made clear
that the respondent Bank is free to hold a departmental regular enquiry and
pass appropriate order if it wishes so. The petitioner will not be entitled for
backwages in the facts and circumstances of the case at present but will be entitled
for continuity of service. However, the respondent is free to decide the
question of backwages after the outcome of the departmental enquiry."
Jaideep Gupta, learned senior counsel appearing on behalf of the appellant,
would submit :
1) The learned Single
Judge committed a serious error in so for as it failed to take into
consideration that for invoking clause 16 of the 8 Shastri Award, personal
service of notice was not imperative as the same could be effected by
registered post with acknowledgment due.
2) As the respondent
did not join his services despite service of notice, it was not necessary for
the appellant to initiate any departmental proceedings.
3) Validity of clause
16 having been upheld in a large number of decisions of this Court, the High
Court committed a serious error in passing the impugned judgment.
4) In any event,
respondent having started his own business, the High Court committed a serious
error in directing his reinstatement in his service.
Niraj Sharma, learned counsel appearing on behalf of the respondent, on the
other hand, would urge :
(i) In view of the
concurrent finding of fact arrived at by two courts that 236 days' leave was
due to the respondent, clause 16 of Shastri Award was not attracted and, thus,,
this Court should not interfere with the impugned judgment.
9 (ii) Service of
notice upon the respondent asking him to join his services having not been
proved, as has been held by the learned Single Judge, the impugned judgment
does not warrant interference.
(iii) In any view of
the matter as the learned Single Judge had given an opportunity for initiating
a departmental proceeding against the respondent to the appellant and having
regard to the fact that since 2004, the respondent had been working in the bank
and furthermore as during the said period, no departmental proceeding has been
initiated, this Court may not exercise its discretionary jurisdiction under
Article 136 of the Constitution of India.
16 of the Shastri Award reads as under :
employee has not submitted any application for leave and absented himself from
work for a period of 90 or more consecutive days without or beyond any leave to
his credit or absents himself for 90 days or more consecutive days beyond the
period of leave originally sanctioned or subsequently extended or where there
is satisfactory evidence that he has taken unemployment in India or the
management is satisfied that he has no present intention of joining duties, the
management may at any time thereafter give a notice to the employee's last
known address calling upon the employee to report for duty within thirty days
of the notice, stating inter alia the grounds for the management coming to the
conclusion that the employee has no intention of 10 joining duties and
furnishing necessary evidence, where available. Unless the employees reports
for duty within thirty days or unless he gives an explanation for his absence
satisfying the management that he has not taken up another employment or avocation
and 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 event of the employee submitting a satisfactory reply, he shall
be permitted to report for duty thereafter within thirty 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 services."
said award provides for the mode and manner in which service of notice shall be
effected in the following terms :
notices and orders :- Notices which are required to be given shall be served
individually on the employees affected and their acknowledgments taken, and
shall also be exhibited on the notice boards of the bank at the offices or
establishments concerned. Such notices as are so exhibited shall be in English
and also in the principal language of the district or locality in which each
such office or establishment is situated. Any notice, order, charge-sheet,
communication or intimation which is meant for an individual employee shall be
in a language understood by the employee concerned. In the case of an absent
employee notice shall be sent to him by registered post, with acknowledgment due."
question as regards validity of Clause 16 of Shastri Award and/or provisions
akin thereto is no longer res integra.
An employee may, in
certain situations, abandon or deemed to have abandoned his job. What
constitutes abandonment may be a matter of a statutory provision or agreement
between the employer and the Union.
without leave for a long time may constitute a grave misconduct on the part of
the employee concerned, in a case of this nature, in view of clause 16 of the
Shastri Award, an employee can be treated to have ceased from employment.
In Viveka Nand Sethi
v. Chairman, J & K Bank Ltd. [(2005) 5 SCC 337], this Court, inter alia,
relying upon the decision of this Court in Punjab & Sind Bank & Ors. v.
Sakattar Singh [(2001 (1) SCC 214] and Syndicate Bank v. General Secretary,
Syndicate Bank Staff Association and Anr. [(2000) 5 SCC 65], held as under :
bipartite settlement is clear and unambiguous. It should be given a literal
A bare perusal of the
said settlement would show that on receipt of a notice contemplated there under,
the workman must either: (1) report for duties within thirty days; (2) give his
explanation for his absence satisfying the management that he has not taken any
employment or avocation; and (3) show that he has no intention of not joining
the duties. It is, 12 thus, only when the workman concerned does not join his
duties within thirty days or fails to file a satisfactory explanation, as
referred to hereinbefore, that the legal fiction shall come into force. In the
instant case except for asking for grant of medical leave, he did not submit
any explanation for his absence satisfying the management that he has not taken
up any other employment or avocation and that he had no intention of not
joining his duties.
XXX XXX XXX
20. It may be true
that in a case of this nature, the principles of natural justice were required
to be complied with but the same would not mean that a full-fledged
departmental proceeding was required to be initiated. A limited enquiry as to
whether the employee concerned had sufficient explanation for not reporting to
duties after the period of leave had expired or failure on his part on being
asked so to do, in our considered view, amounts to sufficient compliance with
the requirements of the principles of natural justice."
The same view was
reiterated by this Court in New India Assurance Co. Ltd. v. Vipin Behari Lal
Srivastava [(2008) 3 SCC 446].
15. Principle of
natural justice, it is trite, does not operate irrespective of the statutory
It was not a case
where like Uptron India Ltd. v. Shammi Bhan & Anr. [(1998) 6 SCC 538] and
Scooters India Ltd. v. M. Mohd. Yaqub [(2001) 1 SCC 61], no notice was required
to be issued.
13 Clause 16 of the
Shastri Award provides for issuance of such notice.
If despite service of
notice the employee did not report for duty, the consequences therefor would
In V.C., Banaras
Hindu University & Ors. v. Shrikant [(2006) 11 SCC 42], upon referring to
D.K. Yadav v. JMA Industries Ltd. [(1993) 3 SCC 259, Uptron India Limited
(supra) and Scooters India Ltd. (supra), it was opined :
"57. The matter
may, however, be different in a case where despite having been given an
opportunity of hearing, explanation regarding his unauthorised absence is not
forthcoming or despite giving him an opportunity to join his duty, he fails to
do so, as was the case in Punjab & Sind Bank v. Sakattar Singh."
This Court upon
considering Vivek Sethi (supra), held as under :
"60. A provision
relating to abandonment of service came up for consideration yet again in
Viveka Nand Sethi v. Chairman, J&K Bank Ltd.
before a Division
Bench of this Court. This Court opined that although in a case of that nature,
principles of natural justice were required to be complied with, a full-fledged
departmental enquiry may not be necessary, holding:
enquiry as to whether the employee concerned had sufficient explanation for not
reporting to duties after 14 the period of leave had expired or failure on his
part on being asked so to do, in our considered view, amounts to sufficient
compliance with the requirements of the principles of natural justice."
61. Mr Dwivedi placed
strong reliance upon the decision of this Court in Aligarh Muslim University v.
Mansoor Ali Khan. In that case, interpretation of Rule 5(8)(ii) came up for
consideration which is in the following terms:
officer or other employee who absents himself without leave or remains absent
without leave after the expiry of the leave granted to him, shall, if he is
permitted to rejoin duty, be entitled to no leave allowance or salary for the
period of such absence and such period will be debited against his leave
account as leave without pay unless his leave is extended by the authority
empowered to grant the leave.
Wilful absence from
duty after the expiry of leave may be treated as misconduct for the purpose of
clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of
Chapter IX of Regulations of the Executive Council."
It was held that a
show-cause notice and reply would be necessary. If no show-cause notice had
been given, this Court held that the principles of natural justice would be
held to be complied with."
Yet again in U.P.
State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh [(2004) 4
SCC 268], it was held as under :
15 "23. D.K.
Yadav is an authority for the proposition that the principles of natural
justice would have to be read in the standing orders. That was a case where
there was a standing order similar to CSO L-2.12 except that 8 days' margin was
granted within which the workman was required to return and satisfactorily
explain the reasons for his absence or inability to return after the expiry of
leave. This view was reiterated in the later decision of this Court in Lakshmi
Precision Screws Ltd. v. Ram Bahagat where it was held that the element of
natural justice was an inbuilt requirement of the standing orders.
24. In this case, the
appellant Corporation had issued two notices calling upon the workmen
represented by the respondent to return to duty.
The workmen did not
respond to either of the notices. As we have noted it was not pleaded that the
advertisement did not sufficiently comply with the principles of natural
justice. The notice was issued giving an opportunity to the respondent to show
cause why the presumption should not be drawn under CSO L-2.12. The respondent
did not show cause. In the circumstances, the management drew the presumption
in terms of the CSO."
question which, however, arises for consideration is as to whether the appellant
has been able to prove that the notice was served upon the respondent. The High
Court, it must be noticed at the outset, committed a serious error in holding
that personal service of notice was imperative inasmuch as in case of an absent
employee notice was required to be served by registered post with
acknowledgment due. The learned 16 Single Judge has arrived at a finding of
fact that notice, in fact, has not been served upon him. Appellant has merely
produced a photostat copy of the envelop. There was nothing to show that the
notice was sent under registered cover with acknowledgment due.
Furthermore, there is
nothing to show that the fact that the respondent has changed his address was
not known to the officers of the bank. The shifting of the residence by the
respondent has not been denied. In fact, the subsequent event, namely, filing
of a suit for recovery of amount of loan from the respondent clearly suggests
that officers of the appellant were aware of the respondent's changed address.
Moreover, a concurrent finding of fact in regard to the non-service of notice
has been arrived at.
Learned Single Judge
had furthermore given liberty to the appellant to give an opportunity of
hearing to the respondent. It is also not in dispute that the respondent has
been working in the bank since 2004. In the aforementioned facts and
circumstances of this case, we are of the opinion that it is not a fit case
where this Court should exercise its discretionary jurisdiction under Article
136 of the Constitution of India.
may be true that a contention has been raised by the appellant that the
respondent had started business in the name of Builders and Brokers.
17 The said fact was
sought to prove from the greeting cards sent to the officers of the bank on the
occasion of Diwali. Although the said plea was required to be taken into
consideration by the High Court, in our opinion, it is not necessary to go into
the said question as in view of the fact that the respondent has already been
reinstated in service. Appellant would, however, be at liberty to avail the
remedies given to it by the High Court.
appeal is dismissed. However, there shall be no order as to costs.
[Dr. Mukundakam Sharma]
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