Ramdas B. Kotian vs Bank of Baroda and Another

G.R. Majithia, J.—The petitioner-Ramdas B. Kotian has challenged the Award dated November 13, 1992 passed in Reference No. CGIT-2/5 of 1988 in this petition under Article 226 of the Constitution.

The petitioner was appointed as Peon in Bank of Baroda (hereinafter called as "Employer") on January 1, 1978. He was confirmed in service on July 9, 1978. As he had remained absent from duty, Employer issued him notices pointing out to him that he had remained absent from duty unauthorisedly. On January 22, 1985 a show-cause notice was issued to the petitioner saying that on account of his continuous/recurring ill health, Employer could not utilise his services beneficially and it had caused hardships and inconvenience. The notice reads thus :

"You have remained absent from duty on the ground of ill health on the following occasions :

From 27.5.1982 to 12.7.1982

From 03.5.1983 to 06.5.1983

From 10.5.1983 to 24.5.1983

27.5.1983

From 1.6.1983 to 3.6.1983

From 7.6.1983 to 24.8.1983

From 22.2.1984 to 23.2.1984

From 28.3.1984 to 31.3.1984

From 5.4.1984 to 28.4.1984

From 4.5.1984 onwards.

On account of your continuous/recurring ill health, we are unable to utilise you services beneficially and this has been causing great hardship and inconvenience to the Bank.

As you are no longer in a position to discharge your duties to the Bank''s satisfaction, you are hereby requested to show cause within 10 days from the date hereof as to why you services should not be terminated on the grounds of your continuous/recurring ill health.

Yours faithfully, Sd/- Regional Manager (Bombay West Region)

The petitioner replied the said show cause notice but the same was found unsatisfactory and on July 10, 1985 his services were terminated. The order of termination reads thus :

"1. We refer to the show cause notice No. RM : Bom : West : STF : 20/254, dated 22nd January, 1985 whereby you were required to show cause why your services should not be terminated on the grounds, of your continuous/recurring ill health.

Your reply dated 8th February, 1985 has been considered but found not to be satisfactory.

I has, therefore, been decided that your services shall stand terminated with effect from 10th July, 1985 after office hours of 10 July, 1985.

We send herewith a pay slip for Rs. 2,914.05 (Rupees two thousand nine hundred fourteen and paise five only) in lieu of 3 months notice.

Yours faithfully, Sd/- Regional Manager (Bombay West Region)

Encl : As above.

The President of Udupi Taluka Bank Employees'' Association, made request to the Central Government for making a reference of the dispute between the petitioner and the employer for adjudication to the Industrial Tribunal. The Central Government, by order dated January 29, 1988 referred the following dispute to the Industrial Tribunal u/s 10(1)(d) of the industrial Disputes Act, 1947 :

"Whether the termination of services of Shri R. B. Kotian sub-Staff of Bank of Baroda, Bombay West Region, Bombay w.e.f. 10.7.1985 without any enquiry, etc. is justified ? It not, what relief the workman is entitled ?"

The Industrial Tribunal issued notices to the employer and the workman. The statement of claim was filed on behalf of the workman by the President of Udupi Taluka Bank Employees'' Association. The case briefly projected in this statement of the claim is that the petitioner-workman had unblemished service record; that he had been suffering continuous/recurring ill health from May 4, 1984 and he could not attend his duties; that he was on medical leave and he submitted medical certificates to the employer; that Doctors had advised him to go out of Bombay for the change of climate preferably to his native place; that he submitted representation to the employer for transferring him to any branch in South Kanara District or Bangalore; that the request was turned down and thereafter the impugned order was passed.

The employer filed Written Statement controverting their claim of the petitioner. It interalia pleaded that the Udupi Taluka Bank Employees'' Association has no locus standi to expose the cause of Mr. R. B. Kotian. On merits, it was stated that during the period of seven years of his service, the petitioner had availed of 522 days leave on loss of pay. He was referred to the Bank Medical Officer for opinion as to whether he was fit enough to resume duties. The Medical Officer opined that he was not suffering from any serious ailment and was fit to resume his normal duties. The petitioner absented from duty from May 4, 1984 and he had been sending medical certificates.

On the pleading of parties, the Industrial Tribunal framed following issues :

"1. Whether the workman proves that the termination of his services by the Bank, without holding any inquiry against him, is premature, unreasonable,, against the principles of natural justice and as such, illegal ?

Does the management of the Bank of Baroda prove that the Udupi Taluka Bank Employees'' Association has no locus standi to espouse the cause on behalf of the present workman Shri R. K. Kotian ?

Whether the President of the said Union is not competent to espouse the cause on behalf of the said workman before this Tribunal ?

Whether no industrial dispute existed or exists between the said Bank and its workmen concerning the said workman ?

Whether the termination of services of Shri R. B. Kotian, Sub-Staff of Bank of Baroda, Bombay West Region, w.e.f. 10.7.1985 without any enquiry, etc., is justified ?

If not, to what relief the workman is entitled ?

What Award ?

Issues Nos. 2, 3 and 4 were tried as preliminary issues. The Industrial Tribunal vide Award-I dated November 27, 1990, held, that the Udupi Taluka Bank Employees Association had locus standi to espouse the cause on behalf of the workman; that the President of the said Association was competent to espouse the cause on behalf of the said workman and that industrial dispute existed between the Bank and the Workman. Under issue no. 1, it was held that the termination of services of the workman was not illegal and against the principles of natural justice. Under issue no. 5, it was held that the termination of services without inquiry with effect from July 10, 1985 was justified. Under issue nos. 6 & 7, it was held that the petitioner was not entitled to any relief.

The precise question arising for termination is whether action of the Bank is within the purview of para 522 of the Shastri Award. If the action is as envisaged by this paragraph, the order of termination is valid. Paragraph 522 of the Shastri Award reads as under :

"Section D - Procedure for termination of employment.

We now proceed to the subject of termination of employment. We give the following directions :-

In cases not involving disciplinary action for misconduct and subject to clause (6) below, the employment of a permanent employee may be terminated by three months'' notice or on payment of three months'' pay and allowances in lieu of notice. The services of a probationer may be terminated by one month''s notice or on payment of a month''s pay and allowances in lieu of notice.

A permanent employee desirous of leaving the service of the bank shall give one month''s notice in writing to the Manager. A probationer desirous of leaving service shall give 14 days'' notice in writing to the Manager. A permanent employee or a probationer shall, when he leaves service, be given an order of relief signed by the Manager.

If any permanent employee leaves the service of the bank without giving notice, he shall be liable to pay the bank one month''s pay and allowances. A probationer, if he leaves services without giving notice, shall be liable for 14 days pay and allowances.

The services of any employee other than a permanent employee or, probationer may be terminated, and he may leave service, after 14 days'' notice. If such an employee, leaves service without giving such notice he shall be liable for a week''s pay (including all allowances).

An order relating to discharge or termination of service shall be in writing and shall be signed by the Manager. A copy of such order shall be supplied to the employee concerned.

In cases of contemplated closing down or of retrenchment of more than five employees, the following procedure shall be observed :

(a) two month''s notice of such proposed action will be given individually to all the employees concerned, with a statement of the reasons for such proposed action;

(b) the Manager or an Officer empowered in this behalf shall within the period of such notice hear any representation from the employees concerned or any registered union of bank employees;

(c) after the hearing of such representation and the receipt of a report in the matter, if necessary, by the management, if it decides to give effect to the contemplated closing down or retrenchment in the original or an amended form the services of the employees may be terminated by giving notice or payment in lieu thereof for the periods prescribed above ...."

Reading of this paragraph indicates that services of a permanent employee can be terminated if it does not involve the disciplinary action for misconduct. The misconduct does not attract disciplinary action. If the misconduct attracts disciplinary action no action under this paragraph can be taken. Misconduct is attributed to the petitioner for continuously remaining absent from duty and ill-health prevents him from discharging his duty resulting in hardship to the employer. In the instant case, a reading of show cause notice suggests that the services of the workman were terminated on account of his continuous/recurring ill health and that the workman was unable to discharge his duties to the satisfaction of his employer and that absence of the workman from duties had caused great hardship and inconvenience to the employer. According to the show cause Notice, petitioner had been incapacitated to serve the bank of account of his continuous ill health. The question whether he has been so incapacitated or not, can only be adjudicated upon if a proper inquiry is held. In the inquiry the employer will prove the charge levelled against the petitioner. This can be possible only if a regular charge-sheet is served on the employee and a regular inquiry is conducted according to law. The Tribunal after referring to the material placed on record, came to the following conclusion :

"It is thus quite clear from the documentary evidence on record as above that the services of the said workman were terminated on the ground of continuous/recurring illness, and not on the ground of any misconduct on his part. Therefore, it was not at all necessary for the Bank management to hold any domestic enquiry against him before terminating his services, and I find that the termination of the services of the said workman was quite just, proper and legal, as per the provisions contained in the para 522 of the Shastri Award".

Reading of this conclusion indicates that the Tribunal was impressed by the fact that the workman had been sending medical certificates for grant of leave and this fact established that the services of the workman were terminated on account of continuous/recurring illness. This is not referable to misconduct. The approach of the Tribunal is erroneous. It has misconstrued para 522. The misconduct of the employee led to the resultant action. For this misconduct disciplinary action was imperative. This was not done. Even the Bank Manager at the trial as M.W.1 admitted that the petitioner had been sending applications for grant of leave and the same were not rejected by the employer. The admission of this witness that the applications for leave were not rejected, establishes that for 522 days the workman was on sanctioned leave. The employer''s case is that the petitioner was not granted any leave with effect from May 4, 1984 till the date of issuance of show-cause notice. If the action was taken for his wilful absence from duty for this particular period, then obviously, the show cause notice under which purported action has been taken was defective and the petitioner did not have proper opportunity to meet the proposed charge for which action was taken.

For the reasons stated above, the Writ Petition succeeds. Rule is made absolute in terms of prayer clause(s).

The petitioner will not be entitled to any backwages as we have found that the petitioner had been on leave without pay permissible under the rules for the period of 522 days and even thereafter he was absent without sanctioned leave. The action of the Management has been set aside only for the reasons that it is not as envisaged by the rules and hence, we decline the relief of backwages to the petitioner. The petitioner will be in service without backwages but with continuity of service.

The employer will give effect to this order within one month.

The learned counsel for the Bank will make endeavour to persuade the Bank to post the petitioner at a station which will prove conducive to his good health.

No order as to costs.

Record and Proceedings be sent back.