Judgment :- The petitioner in this writ petition seeks for the issuance of a writ of certiorari, calling for the records pertaining to Proc.TZOVGAS 211,055 dated 24.4.1996 on the file of the respondent and to quash the same. 2. The petitioner was appointed as a clerk in the respondent bank on 4.12.1977. According to him while he was in service in the Pudur Branch of the respondent bank, he applied for sick leave through telegram dated 8.12.1995 requesting leave from 4.12.1995 onwards. The proof for sending such telegram is filed by the petitioner in the typed set of papers. However, the petitioner was issued with a show cause notice dated 7.3.1996 calling upon him to report for duty within 30 days from the date of receipt of the said notice, failing which, it would be deemed that the petitioner had voluntarily retired from service in terms of Clause 17(a) of the Fifth Bipartite Settlement dated 10.4.1989. Though an explanation was given by enclosing a medical certificate vide letter of the petitioner dated 12.03.1996, the petitioner was directed to appear before the Regional Medical Board at Government Rajaji Hospital, Madurai on 24.4.1996. The petitioner appeared before the Medical Board, but he was not examined physically. The Medical Board opined that the medical certificates issued for the period from 4.12.1995 to 31.3.1996 is not justified for want of documentary evidence in support of the disease and the treatment. The Medical Board further opined that the petitioner is fit for resuming duty from 3.4.1996. In spite of the same, by the impugned order dated 24.04.1996, the petitioner was informed that he was deemed to have retired voluntarily from service in terms of the provisions of Clause 17(A) of the Bipartite Settlement dated 10.4.1989. 3. The learned counsel appearing for the petitioner would challenge the order on the ground that in the given circumstances, application of Clause 17(a) of the Settlement is totally unwarranted and out side the scope of the settlement and only in order to bye pass the usual procedure of issuance of show cause notice, conduct of enquiry and passing of final orders, the said clause has been issued. The said Clause is applicable only when an employee has unauthorisedly absented from duty without applying leave and when explanation is called for, no explanation is submitted. The said Clause is applicable only when an employee has unauthorisedly absented from duty without applying leave and when explanation is called for, no explanation is submitted. When the petitioner had submitted the explanation for his unauthorised leave, invoking Clause 17(a) is impermissible. He would also contend that in any case, before taking the action of voluntarily retiring a person from service, the respondent should give a notice to the employee calling upon him to report for duty within 30 days from the date of the notice stating inter alia the grounds or coming to the conclusion that the employee has no intention of joining duty and furnishing necessary evidence. The notice dated 7.3.1996 is silent about the ground on the conclusion arrived at by the respondent bank as to the intention of the employee in not joining the duty. The said notice is also bereft of the details as to the evidence for such conclusion. 4. Precisely, the argument of the learned counsel for the petitioner is that applying Clause 17(a) is totally unsustainable. The learned counsel in this regard would rely upon the judgment of the Supreme Court reported in PUNJAB & SIND BANK AND OTHERS VS. SAKTTAR SINGH ((2001) 1 SUPREME COURT CASES 214) more particularly, with reference to paragraph 5 of the judgment to contend that when an explanation regarding the unauthorised absence is submitted or the materials placed justifying the unauthorised absence, the enquiry is necessitated. 5. The learned counsel would further submit that as the petitioner had submitted his explanation, issuance of impugned order invoking Clause 17(a) is totally unsustainable. He would also rely upon the judgment of the Supreme Court reported in ANOOP JAISWAL VS. GOVERNMENT OF INDIA AND ANOTHER (1984 SUPREME COURT 636) to contend that before the services were terminated without any enquiry, Article 311 is attracted except where the cases such termination is made out on contract or invoking the service rules. 6. On the contrary, the learned counsel appearing for the respondent would submit that the telegram alleged to have been sent by the petitioner is disputed as the petitioner did not apply for leave from 4.12.1995 as alleged by him. 6. On the contrary, the learned counsel appearing for the respondent would submit that the telegram alleged to have been sent by the petitioner is disputed as the petitioner did not apply for leave from 4.12.1995 as alleged by him. Since there was unauthorised absence from 4.12.1995, the petitioner was issued with the notice dated 7.3.1996 invoking Clause 17(a) of the Fifth Bipartite Settlement dated 10.4.1989, calling upon him to join duty within 30 days on the date of the notice. In spite of the same, the petitioner did not join duty and therefore, he was referred to Medical Board and the Medical Board also opined that the leave for the period from 4.12.1995 to 31.3.1996 was unjustified. Even after the said report of the Board certifying that the petitioner is fit for resuming duty from 3.4.1996, the petitioner did not report for duty, but, sent a letter dated 31.03.1996, seeking for leave under loss of pay since 4.12.1995 for two years. Hence, by invoking Clause 17(a), it was deemed that the petitioner has voluntarily retired from service. In support of his argument, the learned counsel relied upon the judgment of the Supreme Court of India in the case reported in SYNDICATE BANK VS. GENERAL SECRETARY, SYNDICATE BANK STAFF ASSOCIATION AIR 2000-SC-2198: LLJ – I2000-1630 and argued that in the present case, the respondent bank, on being satisfied that the petitioner had no intention to join duty, invoked Clause 17(a) of the Bipartite Settled dated 10.4.1989, which cannot be considered as illegal. He would also submit that the said Clause could be invoked even if the explanation is not accepted by the respondent Bank. He would also relied upon the judgment of the Single Judge of ANDHRA PRADESH HIGH COURT IN HANUMANTHA RAO VS. PUNJAB NATIONAL BANK AND ANOTHER (2202-III-LLJ-1016) upholding the right of the Bank to take action for absence of employee from work for 90 days or more invoking Clause XVI of the Fourth Bipartite Settlement 1984. 7. I have considered the above submissions of the respective counsels. The Clause invoked by the respondent Bank to pass the impugned order is Clause 17(a) of the Fifth Bipartite Settlement dated 10.4.1989. 7. I have considered the above submissions of the respective counsels. The Clause invoked by the respondent Bank to pass the impugned order is Clause 17(a) of the Fifth Bipartite Settlement dated 10.4.1989. There is no dispute that the said bipartite settlement is applicable to the petitioner, but, before invoking the said Clause, the following are the conditions to be fulfilled by the Bank: 1.The employee must absent himself from work for a period of 90 days or more; 2.Such absence must be without submitting application for leave to his credit; 3. when there is a satisfactory evidence that he has taken up employment in India; 4. when the management reasonably satisfies itself that the employee has no intention of joining duties." If any one of the above conditions are satisfied then the further courses this could be adopted by the management are as follows:- 1.the management should give notice to the employee at his last known address calling upon him to report for duty within 30 days of the date of notice; 2.the management should state inter alia the grounds on coming to the conclusion that the employee has no intention of joining duties; 3.the management should furnish necessary evidence wherever is available. Only on the compliance of the above said conditions and the employee fails to report duty within a period of 30 days, then it must be deemed that the employee had voluntarily seized from employment. 8. In so far as the judgment cited by either side, there is no dispute as to the power of the Bank to invoke the relevant Clause for taking action in case of unauthorised absence. Equally there is no dispute that if any of the conditions of the relevant Clause in Bipartite Settlement is not complied with, the only course open to the management is to issue charge-sheet as to the misconduct with reference to the unauthorised absence, conduct of enquiry and take further action. In view of the settled position I do not elaborate the case law cited by the learned counsel for either side. 9. Keeping the law laid down by the Apex Court on this issue let me now consider the applicability of the same to the facts of the present case. In view of the settled position I do not elaborate the case law cited by the learned counsel for either side. 9. Keeping the law laid down by the Apex Court on this issue let me now consider the applicability of the same to the facts of the present case. Though the request of the petitioner for sick leave from 4.12.1995 was disputed by the respondent Bank, the petitioner has filed the receipt for such a telegram sent on 8.12.1995. The said request of the petitioner was not rejected by the respondent bank. On the contrary, a notice dated 7.3.1996 was issued to the petitioner calling upon him to join duty within 30 days. For better appreciation, the notice itself is extracted as under:- "CONFIDENTIAL Mr.A.Jeyachandran, SR.No.15277 Clerk/Shroff/Typist, Indian Bank, Sivaganga Branch Residential Address 6/144, Ankayarkanni Colony, Athikulam K.Pudur, Madurai-625 007 Dear Sir, It is reported to me that you have been absenting yourself from duty unauthorisedly from 4.12.1995 and that you have not submitted any leave application to the Bank for your such reported absence. Your unauthorised absence from 4.12.1995 warrants disciplinary action under provisions of Bipartite settlements. Without prejudice to the right of the Management to initiate disciplinary action for your unauthorised absence from 4.12.1995 you are hereby called upon to report for duty within thirty days from the date of receipt of this notice, failing which it will be construed that you have no interest in continuing your employment in the Bank and that you have relinquished your job on your own volition and you will be deed to have voluntarily retired from the services of the Bank on the expiry of the said notice in terms of Clause 17(A) of the Fifth Birpartite Settlement dated 10.4.1989. Your faithfully, PL.KR.Srinivasan, Zonal Manager." 10. It should be now considered as to whether the said notice is in-conformity with Clause 17(a) of the Settlement. Though in the notice it is stated that the petitioner was unauthorisedly absented from duty from 4.12.1995 and the same warrants disciplinary action, he was only called upon to report for duty within 30 days from the date of receipt of the said notice. The notice purported to have been issued under Clause 17(a) is silent about the satisfaction of the respondent management as to the intention of the petitioner in not joining duty. The notice purported to have been issued under Clause 17(a) is silent about the satisfaction of the respondent management as to the intention of the petitioner in not joining duty. Again the notice is silent about the grounds except the petitioner has unauthorisedly absented from duty, no evidence was also furnished. In this background, the reply of the petitioner dated 12.03.1996 should be considered. 11. In the said reply, the petitioner had not only referred the earlier telegram sent by him dated 8.12.1995, but also requested sick leave from 4.12.1995. The receipt of the said letter is not disputed by the respondent bank. The petitioner also enclosed a medical certificate issued by a Registered Medical Practitioner of Madurai dated 11.3.1996 certifying that the petitioner required leave for the period from 4.12.1995 to 31.3.1996 for medical care. After receipt of the above, presumably accepting the application, the petitioner was directed to appear before the Regional Medical Board, Government Rajaji Hospital, Madurai on 2.4.1996. Though it is disputed by the petitioner that he was not physically examined, the Medical Board, in its report had stated that the petitioner was examined on 2.4.1996 and found that the petitioner was fit to resume duty from 3.4.1996. The Board also found that the certificate issued for the period from 4.12.1995 to 31.3.1996 was not justified for want of documentary evidence in support of his disease and treatment. This report alone is the basis for the impugned order. Even in the impugned order, it is not stated that the petitioner had no intention to join duty. The relevant impugned order is extracted as under: "INDIAN BANK Zonal Office, Jenne Plaza, 5-E & F, Bharathiar Salai, Trichy-620 001 24.4.1996 Mr.A.Jeyachandran, SR.No.15277 Clerk/Shroff/Typist, Indian Bank, Sivaganga Branch Residential Address 6/144, Ankayarkanni Colony, Athikulam K.Pudur, Madurai-625 007 Dear Sir, Please refer notice TZO VG AS 211:628 dated 7.3.1996 calling upon you to report for duty within thirty days from the date of receipt of such notice and informing you that if you failed to report for duty within such period you would be deemed to have voluntarily retired from the services of the Bank under Clause 17(a) of the Fifth Bipartite Settlement dated 10.4.1989. The notice was delivered to you on 13.3.1996. You have however not reported for duty so far, despite lapse of the period of notice. The notice was delivered to you on 13.3.1996. You have however not reported for duty so far, despite lapse of the period of notice. You have not also submitted any explanation in reply to the said notice. You have vide your letter dated 12.3.1996 informed the Senior Manager of Sivaganga branch that you have been sick since 4.12.1995. You were therefore required to appear before the Medical Board at Govt. Rajaji Hospital, Madurai for an examination by the Medical Board on 2.4.1996. The Board have, after examining you, held in their report dated 2.4.1996 that the medical certificate for the period from 4.12.1995 to 31.3.1996 (submitted by you along with your letter dated 12.3.1996) is not justified. A copy of the report dated 2.4.1996 of the Medical Board is enclosed. In view of the conclusion reached by the Medical Board and in the absence of any explanation from you for your absence, your failing to report for duty within the period of notice is construed as your not being interested in continuing your employment in the Bank. You are deemed to have voluntarily retired from the Bank's service with immediate effect, in terms of the provisions, of Clause 17(a) of the Fifth Bipartite Settlement dated 10.4.1989. Full and final settlement of your terminal benefits will be made by the Central office of the Bank in due course. Yours faithfully, P.L.KR.Srinivasan, Zonal Manager." 12. A reading of the impugned order would go to show that application of Clause 17(a) was only on the basis of the report of the Medical Board, which was issued on 2.4.1996 much after the notice dated 7.3.1996 issued by the respondent bank. The validity of the impugned order passed with reference to Clause 17(a) of the Act should be tested only with reference to notice dated 7.3.1996 issued by the respondent Bank asking the petitioner to report duty within a period of 30 days from the date of receipt of the said notice. Subsequent event viz., the report of the Medical Board cannot validate the notice issued much prior to the said report. As already observed, the notice dated 7.3.1996 is not in conformity with Clause 17(a) of the Fifth Bipartite Settlement. That apart, the final order also does not indicate any of the reasons enumerated in Clause 17(a) of the Bipartite Settlement. Subsequent event viz., the report of the Medical Board cannot validate the notice issued much prior to the said report. As already observed, the notice dated 7.3.1996 is not in conformity with Clause 17(a) of the Fifth Bipartite Settlement. That apart, the final order also does not indicate any of the reasons enumerated in Clause 17(a) of the Bipartite Settlement. The reasons adduced in the impugned order is the report of the Medical Board disbelieving the earlier medical certificates produced by the petitioner and that too only on the ground that the same was not justified for want of documentary evidence and the report does not say that the petitioner did not fall on ill health. If the above is accepted, the impugned order though refers to the provisions of Clause 17(a) of the settlement dated 10.4.1989, in fact, was passed on the basis of the Medical Report, which was much later to the action taken against the petitioner invoking Clause 17(a) of the Bipartite Settlement. When the subsequent event namely, the Medical Report was the basis for the further action, necessarily, the petitioner is entitled to an opportunity of defending the same by way of proper explanation followed by an enquiry. 13. In that view of the matter, I find that the impugned order is liable to be set aside and accordingly, the same is set aside and the writ petition is allowed. No costs.