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Judgment
The writ petitioner seeks to challenge the order passed by State Bank of India dated 12th May, 1988 wherein it is stated that in terms of paragraph XVI of the Bi-partite settlement dated 17th September, 1984 the petitioner is deemed to have "voluntarily vacated" his service with effect from 9th May, 1988.
The petitioner was working in the State Bank of India at Vijayawada as a clerk from 1965. In 1983 the Bank started a Staff Co-operative Stores at Vijayawada and the petitioner was sent on deputation to the said Stores for two years as per the letter of the Bank dated 25th September, 1983. Even though the deputation came to an end by 29th October, 1985, the petitioner did not choose to report to duty in the Bank. In the Stores, there were certain allegations of misappropriation etc., against the petitioner to the tune of one lakh and odd which resulted in an enquiry. On receipt of report, proceedings for recovery of Rs. 1 lakh and odd were initiated. On 1st January, 1986 a Special Officer was appointed to manage the affairs of the Stores. The petitioner absented from duty at the Branch office of the Bank from 29th October, 1985 to 31st October, 1986, 8th December, 1986 to 13th December, 1986 and 21st July, 1987 to 31st July, 1987. A charge sheet was issued on 1st March, 1988 to the petitioner complaining that he had committed minor misconduct in terms of paragraph 521(6)(a) of the Sastry Award read with paragraph 18.28 of the Desai Award for absenting from duties without submitting leave applications or submitting leave applications after availing leave. It is also stated that the petitioner''s action in not replying to the letters is an act of wilful disobedience of the lawful and reasonable orders of his superiors - an act of gross misconduct in terms of paragraph 521(4)(e) of the Sastry Award read with paragraph 18.28 of the Desai Award. The petitioner was called upon to submit his explanation. If any, within seven days. Though Mr. V. Srinivas, the learned counsel for the petitioner, submits that an explanation has been submitted by the petitioner to the charge memo, it has not been placed before me.
The writ petitioner does not refer to the fact that the notice regarding disciplinary action was withdrawn by the Bank and that a fresh notice was issued on 2nd April, 1988 by the Bank asking the petitioner why he should not be deemed to have voluntarily resigned. After the above fact was revealed in the counter, the writ petitioner filed a rejoinder stating that he had also submitted a reply to the new shoe cause notice dated 2nd April 1988, the reply bearing date 1st May. 1988.
The impugned order put up on the notice board on 12th May, 1988, reads as follows :-
"This is to inform that Sri Thotakura Venkateswarlu, clerk, Vijayawada branch, has voluntarily vacated from Bank''s service in terms of paragraph XVI of the Bi-partite settlement dated 17th September, 1984 with effect from 9th May, 1988."
In the writ petition, the petitioner tried to project the case as if pursuant to a notice for disciplinary action dated 1st March, 1988, instead of conducting an inquiry, the respondents passed an order on 12th May, 1988 deeming the petitioner as having voluntarily resigned from service. It was also stated that S. 25-F has been violated. The petitioner contends that he is still continuing on deputation at the Co-operative Stores and does not reveal that the accepted the position that the deputation came to an end.
The learned counsel for the writ petitioner, Sri V. Srinivas, has submitted that the impugned order treating that the petitioner voluntarily retired must be treated as amounting to retrenchment u/s 2(oo) of the Industrial Disputes Act and that inasmuch as the procedure u/s 25-F had not been followed the impugned order must be quashed. It is submitted that in view of Section 25-J the provisions of Section 25-F of the Industrial Disputes Act have an over-riding effect even on para XVI of the Bi-partite settlement dated 17th September, 1984, and the letter must be treated as void. It is pointed out that the case does not come within the methods of termination of employment excluded from the purview of Section 2(oo) of the Act. Alternatively it is submitted that even assuming that action could be taken under para XVI of the Bi-partite settlement there is no proof that the bank applied its mind to the requirements of the said provision and was satisfied in that behalf. It is argued that the petitioner continued to work in the Stores even after 29th October, 1985 and that inasmuch as no other substitute was appointed in the Stores and the petitioner could not submit the accounts and case to any successor/office-holder, he could not leave the Stores and come back to the bank. It is also argued that having given a notice alleging misconduct it is not open to the bank to fall back upon para XVI of the Bi-partite settlement alleging voluntary retirement.
On the other hand, it is contended by Sri K. Srinivasa Murthy that the petitioner''s case is not covered by Section 25-F as it does not amount to retrenchment u/s 2(oo). It pointed out that there is no pleading in the writ petition with reference to the show cause notice dated 2nd April, 1988 nor is there is any pleading that the bank had no grounds to be satisfied that the conditions required in para XVI of the Bi-partite settlement have been fulfilled. It is also pointed out that according to the counter as well as the records maintained by the bank it is clear that the petitioner rejoined duty in the bank at any rate from November, 1986 upto August. 1987 and that he was paid salary by the bank. It is therefore not possible to contend that the petitioner continued to work in the consumer stores between 29th October, 1985 and 1st May, 1988. It is argued that as the earlier notice dated 1st March, 1988. Wherein charges of misconduct were framed was superseded by the subsequent notice dated 2nd April, 1988, there was no estoppel against the bank.
At the outset, it is to be noted that the bank has categorically stated in its counter that it paid salary to the petitioner from November, 1986 till August, 1987 and this is not contradicted and this shows that the petitioner did not, in fact, continue in the Stores but joined back duty in the bank itself and that he started absenting himself there without good reasons from 1st January, 1988 as alleged in the notice dated 2nd April, 1988. The entire facts mentioned in the writ petition as well as in the reply affidavit that the petitioner continued to work in the Stores believing that he will be continued on deputation has therefore no legs to stand. The facts in the counter-affidavit are amply corroborated by the records produced by the bank before me which show that the petitioner applied "to the Bank" for grant of leave on 16th January, 1987 seeking leave for three days. He sent a further leave application to the Bank on 1st August, 1987. It is also clear that even earlier the Branch Manager wrote on 29th December, 1986 to the petitioner that he was absent from duty from 8th December, 1986 to 18th December, 1986 and on 23rd December, 1986 without applying for any leave. It is also stated that the petitioner wrongfully interpolated some timings on the following dates : 15th December, 1986, 16th December, 1986, 17th December, 1986, 18th December, 1986 and 23rd December. 1986 against the notings ''absent'' in the attendance register of the Bank. If he continued on deputation, he could not have sought leave from the Manager of the Bank. Hence the petitioner cannot contend that he was either continued or believed that he continued to be on deputation beyond 29th October, 1985.
The charge memo having been withdrawn and a fresh show cause notice having been issued under para XVI of the Bi-partite Settlement, the question remains how far the impugned order deeming voluntary retirement is valid.
The Bi-partite Settlement dated 17th September, 1984 is a settlement u/s 2(p) and Section 18(1) of the Industrial Disputes Act 1947 and has been entered into between 55 Banks and various representative of employers on the one hand and various associations of bank employees. Para XVI of the Bi-partite Settlement bears the title "Voluntary cessation of employment by the employees". It reads as follows :-
Where an employee has not submitted any application for leave and absents 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 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended or where there is satisfactory evidence that he has taken up another employment 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 30 days of the notice stating, inter alia, the grounds for the management coming to the conclusion that the employee had no intention of joining duty and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 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 service on the expiry of the said notice. In the event on the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within 30 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.
In the case of an employee who has gone abroad ..."
Section 2(oo) of the Act defines retrenchment as follows :
"''retrenchment'' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include -
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health."
Section 25-F which deals with payment of retrenchment compensation as a condition precedent for retrenchment need however be extracted as it is not in dispute that the respondents have not complied with the provisions of that section. However, the question is whether they should have ? This depends upon the question whether the Bi-partite Settlement above referred to can be said to be nullified to the extend of Para XVI by the provisions of Section 25-F. In order to decided the said question it is necessary to refer to Section 25-J;
"S. 25-J; Effect of laws inconsistent with this Chapter : (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946);
Provided that whether under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or under any award. Contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act."
In my view the proviso to Section 25-J comes in the way of the petitioner. If he was unauthorisedly absent from duty unreasonably for a long time, it would have been open to the Bank to have terminated his services on payment of retrenchment compensation u/s 25-F of the Industrial Disputes Act. If the Bi-partite Settlement confers an additional benefit on the employment to receive a show cause notice even in the case if unauthorised absence, the main part of S. 25-J cannot apply. In my view, para XVI of the Bi-partite Settlement confers far more beneficial right on the employee than the ones covered by S. 25-F. Under para XVI of the settlement, a workman has a further opportunity to satisfy the employer in certain respects and be allowed to join duty and not lose his service whereas Section 25-F accepts the termination by way of retrenchment subject only to the payment of retrenchment compensation. In my view, therefore, such a case falls under the proviso to Section 25-J and therefore Section 25-F cannot be said to over-ride the provisions in para XVI of the Bi-partite Settlement. In cases where a settlement provides a better legal right or condition of service which is more beneficial to the workman than the one provided in the Industrial Disputes Act, the latter does not over-ride the former.
It will be noticed that para XVI uses the words ''will be deemed to have voluntarily retired from the Bank service.'' If the employer and the employees'' unions have agreed to a settlement treating a particular set of facts to result in the employee being deemed to have ''voluntarily retired'', the case would clearly fall within sub-clause (a) of Section 2(oo) which provides that a ''voluntary retirement'' of the workman shall not be treated as retrenchment. In view of the Bipartite settlement both sides had agreed that a certain state of facts if proved to exist amounted to voluntary retirement and if so, it will not amount to retrenchment u/s 2(oo) and will not come u/s 25-F.
I, therefore, hold that para XVI of the Bi-partite Settlement is a valid piece of settlement and is not nullified by the main part of Section 25-J of the Industrial Disputes Act.
The next question is whether there is any violation of the provisions of para XVI of the Bi-partite Settlement as such. In this regard, I have to repeat once again that the petitioner having conveniently avoided to refer to the notice dated 2nd April, 1988 had not laid any foundation for questioning the order of termination dated 12th May, 1988 on the ground that it was not in conformity with para XVI of the Bi-partite Settlement. The only point raised in this connection was that having given the charge memo dated 1st March, 1988 alleging minor and major misconduct it was not open to the Bank to pass the impugned order dated 12th May, 1988 under para XVI of the Bi-partite Settlement.
The learned counsel for the petitioner wanted to interpret para XVI as requiring the Bank to conclude also that the petitioner had not taken up any other employment or avocation also. In my opinion this is not correct. The rule in para XVI only requires either that the employee reports for duty within 30 days or in the alternative explains and satisfies the management that he has not taken up another employment or avocation. These two clauses are in the alternative. They need not both be satisfied. It is sufficient if one of them is satisfied. If the petitioner did not report to duty within 30 days, as happened here, it is sufficient for the employer to take action in terms of para XVI of the Bi-partite Settlement provided however that the Bank as employer was also satisfied that the petitioner had no intention of joining duties. It is not necessary that the employer should further be satisfied that the employee had taken up employment or avocation elsewhere.
On the facts of the case, the petitioner did not join duty within 30 days of the notice nor did he try to satisfy the Bank that he intended to join duty, Instead, he continued to say, in his reply dated 1st May, 1988 that he still believed to be under deputation and the same is to be confirmed. He did not show any sincerity in joining duty in spite of leave not being granted. He even withdrew his leave applications. Hence the conditions necessary to deems a ''voluntary resignation'' were satisfied.
I, therefore, hold that the action taken under para XVI of the Bi-partite Settlement treating that the petitioner had "voluntarily retired" from the Bank''s service does not warrant any interference under the discretionary jurisdiction under Art. 226 of the Constitution of India. It is also to be notified that a proceeding has been launched by the Registrar of Co-operative Societies to recover more than one lakh of rupees from the petitioner and the petitioner has preferred an appeal before the appellate authority and the matter appears to be still pending. I do not also think it to be a fit case to interfere under Art. 226 of the Constitution of India.
20 The writ petition is accordingly dismissed. In the circumstances there will be no order as to costs.