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Judgment
P. Sathasivam, J.—Aggrieved by the Award of the Second Additional Labour Court, Madras, dated 26-8-93 made in I.D.No. 46 of 89, Kancheepuram Central Co-operative Bank Limited has filed the above writ petition to quash the same on various grounds.
The case of the petitioner is briefly stated hereunder: The second respondent herein was employed as Junior Supervisor/Secretary in the Maduramangalam Agricultural Credit Society. He was transferred and posted as Secretary in Medur Agricultural Cooperative Society by proceedings dated 17-4-85. However, the second respondent did not report for duty at the new place. On the other hand, he applied for leave for 2 months by letter dated 24-4-85. Even thereafter, he did not report for duty but extended the leave from time to time upto 15-7-86. In view of the service regulations in the petitioner bank, the Bank directed the 2nd respondent to obtain and produce medical certificate and fitness certificate from the District Medical Officer. The 2nd respondent neither complied with the direction of the petitioner bank nor turned up for duty, but on the other hand, continued to stay away from duty. Therefore, the petitioner Bank relying upon the bye-law No.44 (8) (ix) ordered for the removal of the name of the 2nd respondent from the rolls of the petitioner bank by proceedings dated 18-9-86. Aggrieved by the said proceedings, the second respondent raised an industrial dispute, which resulted in I. D.No. 46/89 before the first respondent herein. Before the Labour Court, the workman got himself examined as W.W.1 and marked Exs. W-1 to W-7. On the other hand, on the side of the Management, two witnesses were examined as M.Ws.1 and 2 and Exs. M-1 to M-37 were marked in support of their defence. The Labour Court after framing necessary issues and after holding that the termination is not in accordance with law and Bye-laws of the Bank, ordered reinstatement with service benefits as well as back wages from 19-9-86. Against the said award, the Bank has preferred the above writ petition.
Heard the learned counsel for the petitioner as well as second respondent.
The only point for consideration in this writ petition is whether the petitioner Bank is justified in removing the second respondent from the rolls of the Bank relying upon the Bye-law No.44 (8) (ix) and whether the Labour Court is justified in ordering reinstatement with service and monetary 5. There is no dispute that the second respondent joined the petitioner Bank in the year 1972. After 15 years of service, according to the second respondent, he fell sick in November, 1985 and so he applied for medical leave from 16-11-85 to 15-7-8 6. It is also his case that he produced necessary medical certificate and there was sufficient medical leave to his credit. He further pleaded that on 9-7-86 as per the rules of the Bank, he was fit to report for duty on 15-7-86, but no orders were passed by the petitioner Bank. It is also his case that he sent a letter dated 18-8-86 requesting the petitioner Bank for suitable posting. On receipt of this letter, the Bank sent a memo asking him to produce fitness certificate from the District Medical Officer, Kancheepuram before 2-9-86. It is further seen that by letter dated 2-9-86, the second respondent requested the bank to give him time till 15-9-86 for producing fitness certificate. He produced fitness certificate and reported for duty on 19-9-86, however the bank, by order dated 18-9-86 dismissed him from service by relying on the bye-laws which states that if a person is absent continuously for 2 months without any reason, he is deemed to have resigned from the services of the bank. The main contention of the bank was that he did not report for duty at the transferred place, on the other hand, he applied for leave for 2 months by letter dated 24-4-85. It is also their case that since he was on leave without any information, as per bye-law 44 (8) (ix), which stipulates that if an employee stayed on leave beyond 2 months, he will be deemed to have left the service of the bank, he was dismissed from service. Therefore, the bank contended that the termination was on his own accord.
Before going into the merits of the claim and the stand taken by both parties, it is useful to refer Bye-law 44 (8) (ix) which reads as under-
"Any member of the establishment whoever stayed leave beyond two months will be deemed to have resigned."
Though two officers were examined on the side of the bank before the Labour Court, the bye-laws relating to the service conditions of the employees of Kancheepuram Central Cooperative Bank Limited had not been produced before the Labour Court. There is no acceptable explanation for non-production of the relevant document before it.
Even assuming there was such special bye-law, according to the second respondent, it will not fit into his case because he had been corresponding with the bank right from 19-9-86 , accordingly it cannot be construed that he had resigned from the services of the bank. With reference to the claim that the second respondent-workman has neither produced medical certificate from the District Medical Officer, nor joined duty in the transferred place, I am satisfied that both parties have exchanged number of letters blaming each other. No doubt, a perusal of the typed-set of papers filed by the petitioner bank shows that there were correspondences between the bank and the 2nd respondent. Though the 2nd respondent did not join in the transferred place, he was corresponding with the bank complaining his ill-health and seeking extension of medical leave. It is also seen from the proceedings before the Labour Court that before the order of termination relying on the bye-laws, the second respondent-workman had sent letter under Ex.W-6, conveying his willingness to join duty. Instead of sending a reply immediately, they wrote a letter on 23-8-86, wherein they requested that fitness certificate has to be produced before 2-9-86. Inasmuch as the time granted by the bank is not sufficient, the workman wrote another letter seeking further time up-to 15-9-86. Though it is true that the workman did not comply with the request of the bank by producing a fitness certificate from the District Medical Officer, the fact remains that he sent reply then and there seeking extension of time. In this context, we have to see whether the order of termination relying on the bye-laws referred to above can be sustained without providing opportunity and conducting enquiry as claimed by the workman.
Learned counsel appearing for the petitioner bank, by relying on a Division Bench decision of the Kerala High Court in the case of Beemakunju Vs. F.C.I., , contended that the Food Corporation of India was well within their power to take disciplinary action for unauthorised absence and the action taken by them without enquiry is not violative of principles of natural justice. Whether it is mandatory under the principles of natural justice to conduct a domestic enquiry in the case of disciplinary action for unauthorised absence was the question raised in that case. The Division Bench after relying on similar provisions in the Food Corporation Staff Regulations, and after considering the circumstances of the case, has held that,
"11........When the service conditions provide for such procedure to dispense with a domestic enquiry in the case of unauthorised absence and if the circumstances would also show that the workman concerned had been put to notice regarding the same, it is not mandatory to conduct a domestic enquiry for that only purpose....."
In saying so, the Division Bench upheld the order of termination for unauthorised absence without conducting any enquiry. More over, the Division Bench in that case noted the long delay in filing the appeal by the workman and in such a circumstance it has observed that no purpose would have been served, if a domestic enquiry had been conducted. The Division Bench after holding that the conduct of the workman leads to the inference of abandonment, has concluded that the Food Corporation of India was well within its jurisdiction in having terminated the services of the workman. It is clear from that case that the termination had taken place in 1979 or 1980 and the workman had filed an appeal against the order of termination in 1986. Taking note of the enormous unexplained delay and the conduct of the workman which leads to the inference of abandonment, the Division Bench has upheld the order of termination based on the service condition without conducting enquiry and found that the course adopted by the Food Corporation of India is not violative of principles of natural justice. I am of the view that the said decision factually distinguishable and not helpful to the petitioner''s case.
Learned counsel for the petitioner also relied on a decision of the Supreme Court in Punjab and Sind Bank and Others Vs. Sakattar Singh, . In that case the appellants Punjab and Sind Bank and others have challenged the order of the High Court which set aside the order of termination of the respondent for unauthorised absence of duty on the ground that the principles of natural justice has not been followed. The Supreme Court observed that there was no material on record to show that the respondent had reported for duty within the period indicated in the notice issued in terms of Clause XVI of IV Bipartite Settlement. Their Lordships have further held that the High Court had proceeded on erroneous basis of non-compliance with the principles of natural justice, whereas the true content of the principles of natural justice should have been borne in mind, particularly when there was an agreement between the parties as to the manner in which the situation should be dealt with and the consequences that would ensue thereof. Though the said decision supports the case of the petitioner bank, it is clear that the workman therein did not send any material to show that he had reported for duty and within the period indicated in the notice issued in terms of Clause XVI of IV Bipartite Settlement. Only in that context the Supreme Court has found that the High Court had proceeded on an erroneous basis of non-compliance with the principles of natural justice, whereas the true content of the principles of natural justice should have been borne in mind, particularly when there was an agreement between the parties as to the manner in which the situation should be dealt with and the consequences that would ensue thereof. First of all, there is no such agreement between the parties as to the manner in which the situation should be dealt with and the consequences that would ensue thereof and secondly, the materials placed before the Labour Court clearly show that though the workman did not produce fitness certificate from the District Medical Officer, he then and there sent reply seeking of leave and also extension of time for production of fitness certificate.
Learned counsel appearing for the second respondent would contend that in spite of bye-laws which provide deeming resignation staying away for more than 2 months, the removal from service without giving opportunity, show cause and enquiry is illegal. In support of the said contention, he relied on a decision of the Supreme Court in Jai Shanker Vs. State of Rajasthan, . The appellant in the case before the Supreme Court overstayed his leave. The respondent therein-Government of Rajasthan, relying on service regulations which provide automatic termination of service of the aforesaid, removed him from service without giving him opportunity to show cause. In such a circumstance, the Supreme Court has held that the removal of the Government servant from service for overstaying his leave is illegal even though it was provided by the service Regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority. In para 7, Their Lordships have held that, Jai Shanker (appellant) was entitled to an opportunity to show cause against the proposed removal from service on his overstaying his leave and as no such opportunity was given to him his removal from service was illegal. It is clear from the said decision that irrespective of the service regulations providing for automatic termination of service on overstay, the Supreme Court has held that removal from service without giving opportunity to show cause is illegal. 11. The next decision relied on by the second respondent is in the case of D.K. Yadav v. J.M.A. Industries Ltd., 1993 II L.L.N. 575. After referring to Clause 13 of the Certified Standing Orders, which is similar to special bye-laws relating to service conditions of the employees of the petitioner bank, Their Lordships have held that the action based on the Certified Standing Orders without enquiry or opportunity is violative of principles of natural justice. The conclusion arrived at therein is as under:- (Paras 16 and 17) "16. It is, thus, well-settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependants. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress, 1991 1 LLN 613, the Constitution Bench, per majority, held that termination of the service of an workman giving one month''s notice or pay in lieu thereof without inquiry offended Art.14. The order terminating the service of the employees was set aside 17.In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant''s plea put forth at the earliest was that despite his reporting to duty on 3 December 1980, and on all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl.13 of the Certified Standing Orders to terminate the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order 13 (2) (iv). Otherwise, it would become arbitrary, unjust and unfair, violating Art. 14. When so read, the impugned action is violative of the principles of natural justice."
It is clear from the case before the Supreme Court that though the Management had power under Clause 13 of the Certified Standing Orders to terminate the services of the appellant therein, the principles of natural justice must be read into the Standing Order, otherwise, it would become arbitrary, unjust and unfair and violative of Article 14. In our case, though there is a deeming provision in the bye-laws, in the absence of notice and enquiry and in the light of the decision of the Apex Court, the termination of the services of the 2nd respondent based on the said bye-laws cannot be justified.
In Uptron India Limited Vs. Shammi Bhan and Another, wherein it was held that a Standing Order which provided for automatic termination of service of a permanent employee would be bad if it did not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically, Their Lordships have held that there could not be any automatic termination of the respondent on the basis of Standing Order No. 9.3.12. and that the principles of natural justice had to be complied with.
In Uptron India Limited Vs. Shammi Bhan and Another, , after considering the expression "liable to automatic termination" occurring in the Standing Orders, Their Lordships of the Supreme Court have held that principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave. They further held that any clause in Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "production" in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically.
I have already referred to the bye-law of the petitioner society. Though bye-law 44 (8) (ix) specifically states that whoever stayed leave beyond two months will be deemed to have resigned since the order of termination attracts evil/serious consequences, I hold that the principles of natural justice must be read into byelaw 44 (8) (ix), otherwise it would become arbitrary, unjust and unfair and violative of Article 14 of the Constitution of India. When so read, as observed by Their Lordships in the above referred Supreme Court decision, the impugned action is violative of the principles of natural justice. It is also clear that there could not be any automatic termination of the services of the 2nd respondent on the basis of bye-law without compliance of principles of natural justice. In other words, in spite of the bye-law, the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave. It is also clear that in the absence of providing an opportunity of hearing the second respondent with reference to the charge of overstaying without proper leave, the action of the bank merely on the basis of bye-law cannot be sustained. The Labour Court considered all these aspects and passed just and appropriate order in favour of the workman. It is also useful to refer a decision reported in Union of India and others Vs. Giriraj Sharma, , wherein Their Lordships have held that if there is no wilful intention to flout the order, the punishment of dismissal is harsh and disproportionate and that dismissal merely on ground of overstaying leave period is not warranted. After holding so, Their Lordships permitted the management/State of Rajasthan to impose appropriate minor punishment.
In the light of what is stated above, particularly in the light of the factual and legal position, as referred above, I do not find any error or infirmity in the order impugned; consequently the writ petition fails and the same is dismissed.