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2025 DIGILAW 214 (MP)

Dy. General Secretary v. Dy. General Manager

2025-03-25

VIVEK AGARWAL

body2025
ORDER 1. This writ petition is filed being aggrieved of award dated 23.10.2013 passed by learned Presiding Officer of the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur in Case No.CGIT/LC/R/243/97 rejecting the claim of the petitioner Chandrashekhar for reinstatement in service. 2. It is submitted by learned counsel for the petitioner that the Industrial Tribunal has recorded a finding in Paragraph No.12 of the impugned award that since bipartite settlement was complied with, therefore, it will be deemed to be voluntary cessation of the employment by the employee. Reading from the extract of the impugned award, it is evident that there is non-compliance of the provision, which has been recorded by the Industrial Tribunal, yet the Industrial Tribunal chose to overlook this vital fact, which is evident even from record as on today and, therefore, the impugned award suffers for arbitrariness, illegality and perversity and is liable to be set aside. 3. Learned counsel for the respondent after perusing the original record submits that the notice was issued to the petitioner on 26.12.1994 as is marked as Exhibit M-18/B and once the notice was issued, the compliance will deem to be made. 4. Before adverting to the rival submissions of learned counsel for the parties, it will be proper to refer to the relevant Clause of the bipartit settlement, which reads as under:- "Voluntary Cessation of Employment by the employee. The earlier provisions relating to the voluntary cessation of employment by the employee in the earlier settlements shall stand substituted by the following: (a) When an employee absents himself from work for a period of 90 or more consecutive days, without submitting any application for leave or for its extension or without any leave to his credit or beyond the period of leave sanctioned originally subsequently or when there is a satisfactory evidence that he has taken to employment in 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 thirty days of the date of the notice, stating interalia the grounds for coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within thirty days of the notice or gives an explanation for his absence within the said period of thirty days 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 service." 5. Thus, it is evident that three things are required to be proved to deem that there is voluntary cessation of employment, namely, (1) absence of the employee from work (2) issuance of notice asking him to join within thirty days of receipt of the notice and (3) failure to comply with the notice. 6. The first notice Exhibit M-18 was issued to the petitioner on 6.10.1994, which says that he was unauthorizedly absent for twenty-one days in the last month. After the cleaning was done by the petitioner Chandrashekhar on 28.9.1994, four dead rats were found in the premises indicating his negligence. He was asked to furnish his satisfactory explanation failing which recommendations will be made to the Regional Office for taking disciplinary action against him. The notice dated 6.10.1994 was probably served on the petitioner on 10.10.1994 as is evident from the acknowledgment card marked as Exhibit M-21. The postal receipt in this regard is available as Exhibit M-22. 7. There is a complaint made by one Shri A.K.Banerjee, Chief Clerk of Branch Umaria on 22.6.1995. The aforesaid complaint is marked as Exhibit M-20. There is a communication Exhibit M-18/A asking the petitioner to report to work within three days and furnish explanation for his absence. Exhibit M-18/B is available on record in which it is mentioned that if he fails to report on duty within thirty days then it will be presumed on the expiry of the period of notice that he has voluntarily retired from work and will be entitled to fourteen days/one month wages and allowances from the Bank. 8. Exhibit M-18/B is available on record in which it is mentioned that if he fails to report on duty within thirty days then it will be presumed on the expiry of the period of notice that he has voluntarily retired from work and will be entitled to fourteen days/one month wages and allowances from the Bank. 8. Learned counsel for the respondent is at pains to explain the absence of postal receipt for his communication as contained in Exhibit M-18/B dated 26.12.1994. 9. Referring back to the Clause of the bipartite settlement, it is evident that not only the notice is required to be given and the language used is that "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 thirty days of the date of the notice stating interalia the grounds for coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, were available". Admittedly, there is no acknowledgement of the petitioner on Exhibit M-18/B dated 26.12.1994 as a proof of having received the notice. 10. As far as Section 27 of the General Clauses Act, 1897 is concerned, it deals with the meaning of service by post. It provides that where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 11. Thus, it is evident that to prove that the notice as contained in Exhibit M-18/B was given to the petitioner in terms of the provisions as contained in Clause 17 of the bipartite settlement and in terms of the provisions as contained in section 27 of the General Clauses Act 1897, the onus was on the Bank to have proved the same. Once the aforesaid fact was not proved then the Industrial Tribunal clearly erred in coming to a finding that despite service of notice Exhibit M-18/b (wrongly mentioned as small ''b" because in the original file, it is mentioned as capital ''B"), the workman failed to join his duties and had not produced his medical certificate or medical bills regarding his illness, that finding being contrary to the record, appears to be coloured and influenced rather than being made in terms of the record. Such coloured and influenced finding cannot be sustained in the eyes of law. 12. At this stage, learned counsel for the respondent places reliance on the judgment of the apex Court in Punjab & Sind Bank & Others versus Sakattar Singh (2001) 1 SCC 214 to contend that at that time IV bipartite settlement was in force and in place of Clause 17, Clause 16 is to be read. 13. However, the facts of Punjab & Sind Bank & Others versus Sakattar Singh (supra) are different from the facts of the present case. In Paragraph No.4, the aforesaid aspect of notice has been dealt with. It is mentioned that under the rule, the employee is given an opportunity to rejoin his duties within a stipulated time or explain his position to the satisfaction of the management but this fact was not before the Apex Court that whether the notice in terms of Clause 16 of the IV bipartite settlement was duly issued in terms of the section 27 of the General Clauses Act 1897 and that issue being a distinguishing factor and giving a notice having the same connotation as given in section 27 of the General Clauses Act, 1897, the management having failed to prove that they had dispatched the notice by registered post by producing the postal receipt of the same but the facts of Punjab & Sind Bank & Others versus Sakattar Singh (supra) being distinguishable will not be applicable to the facts of the case. 14. Accordingly, this writ petition is allowed. The impugned award dated 23.10.2013 passed by learned Presiding Officer of the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur in Case No.CGIT/LC/R/243/97 having been passed contrary to the record is liable to be struck down and is hereby quashed. The consequences to follow. 14. Accordingly, this writ petition is allowed. The impugned award dated 23.10.2013 passed by learned Presiding Officer of the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur in Case No.CGIT/LC/R/243/97 having been passed contrary to the record is liable to be struck down and is hereby quashed. The consequences to follow. The respondent shall give joining to the workman alongwith all consequential benefits within fifteen days from today if he has not attained the age of superannuation and if he has attained the age of superannuation then all his benefits shall be settled treating him to be in service. 15. The management shall also bear cost of this litigation for the workman, which is quantified at Rs.25,000/-. The aforesaid cost will not be debited from the public exchequer as mentioned by Shri Vikram Johri. learned counsel for the respondent and will be payable from the personal pocket of the delinquent officer. If those officers have ceased to be the employees of the bank then it will be debited from the welfare fund of the bank and not from the public exchequer.