Full Judgment Text
REPORTABLE
2023 INSC 1077
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5494 OF 2013
U.P. SINGH … Appellant(s)
VERSUS
PUNJAB NATIONAL BANK … Respondent(s)
J U D G M E N T
RAJESH BINDAL, J.
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1. The workman is before this Court impugning the order
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passed by the Division Bench of the High Court in an intra court
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appeal , whereby the order passed by the learned Single Judge in the
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Writ Petition was upheld.
Signature Not Verified
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Order dated 10.02.2011.
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High Court of Delhi
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Letters Patent Appeal No. 481 of 2010
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Order dated 26.02.2010.
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Writ Petition No. 7834 of 2003
Digitally signed by
SONIA BHASIN
Date: 2023.12.15
11:07:20 IST
Reason:
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2. The learned Single Judge of the High Court had set aside
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the award of the Tribunal . Vide the aforesaid award, the prayer of the
workman was accepted, and order dated 05.12.1984 deeming that the
workman had voluntarily retired, was set aside. He was directed to be
reinstated with full back wages along with interest and consequential
benefits.
3. The brief facts of the case, as are available on record, are
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that the workman was appointed with the Bank on 20.06.1977 as Clerk-
cum-Cashier. Initially, he was working at Barabanki. Thereafter, he was
transferred to Zaidpur, Barabanki and then to Shahjanhanpur in August
1978. On 14.06.1982, he was suspended on account of his disorderly
behaviour. On enquiry, the workman was found guilty of the charges
and awarded punishment of stoppage of two graded increments with
cumulative effect vide order dated 28.09.1983. Vide the same order, he
was advised to report for duty to the Manager, Branch Office,
Bhagwantnagar, Unnao. The workman failed to join duty. In terms of
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Clause XVI of the Bipartite Agreement between Indian Banks’
Association and Workmen Unions, vide order dated 05.12.1984, the
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Award dated 27.08.2003.
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Central Government Industrial Tribunal-cum-Labour court
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Punjab National Bank
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Clause XVI- Voluntary Cessation of Employment by the Employees
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Fourth Bipartite Agreement dated 17.09.1984.
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workman was deemed to have voluntarily retired from service.
Aggrieved by the aforesaid action of the Bank, six years later, the
workman raised a dispute about his deemed retirement before the
Assistant Labour Commissioner. On 15.11.1991, the dispute was
referred to the Tribunal for adjudication. The question referred was
answered by the Tribunal in favour of the workman. However, the
learned Single Judge reversed the award of the Tribunal and the
Division Bench upheld the order passed by the learned Single Judge.
4. The workman, even as per the material available on record,
has joined active practice as a lawyer after his deemed voluntary
retirement from service with the Bank, has appeared in person and
argued before this Court. Even the Tribunal had recorded that the
workman had appeared himself in person and had addressed
arguments.
5. The workman, who appeared in person, submitted that the
Disciplinary Authority, while passing the order of punishment after
enquiry, could not have ordered his transfer in the same order as the
competence to order transfer of the workman lied with a different
authority. The workman had been raising that issue before the
authority, however, the same was not addressed and in an illegal
manner, he was deemed to have voluntarily retired. He was not given
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joining time also. He made number of representations to revoke his
suspension to enable him to join the place of posting after his
reinstatement. He had even gone on hunger strike but none of the
authorities redressed his grievance. He was not even paid subsistence
allowance for the period he was under suspension. After passing of the
punishment order in the enquiry initiated against him, he could not be
continued on suspension as the order dated 28.09.1983 stated that he
shall be deemed to be reinstated only on joining at the new place of
posting. He sought to explain his reasons for not complying with the
order of transfer by explaining that the Branch Office, Bhagwantnagar,
Unnao, was at a distance of 350 kilometers. There was non-payment of
allowances including subsistence allowance for the previous period,
and if he was stated to be under suspension, he could not have been
transferred as the transfer was possible only after his reinstatement.
6. On the other hand, learned counsel for the Bank submitted
that seeing the conduct of the workman, who had been misbehaving
with his senior officers and was also in the habit of not complying with
the orders of the authorities, he was imposed a very light punishment
of stoppage of two graded increments, otherwise the notice issued to
him after enquiry was to show cause as to why he should not be
dismissed from service. There is no place for any indisciplined person
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in any institution, especially in a Bank where entire business depends
upon the dealing of the staff with its customers. Even after the
punishment was imposed upon him and to avoid any further untoward
incident, seeing his past conduct, the workman was directed to report
for duty at a different branch. However, the workman did not comply
with that order and continued raising the dispute with the Bank at
different levels. He further mis-conducted himself by sitting on a
hunger strike. This aggravated the issue and shows the attitude of the
workman who was not fit to be retained in service. It was contended
that there is no error in the orders passed by the High Court setting
aside the award of the Tribunal and the workman does not deserve any
relief.
7. We have heard the workman, who appeared in-person and
the learned counsel for the Bank and perused the relevant referred
record.
8. A fact which is not in dispute and has been specifically
recorded by the learned Single Judge of the High Court in his order is
that in the year 1985 the workman got himself enrolled as an Advocate
with the Bar Council of Uttar Pradesh. It was admitted by him that he
had been handling cases of the Union and other employees of the
Bank.
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9. It is a fact that the workman was awarded the punishment of
stoppage of two graded increments vide order dated 28.09.1983. In the
same order, the workman was directed to report for duty to the
Manager, Branch Office, Bhagwantnagar, Unnao (U.P.). The fact which
remains undisputed is that the workman never challenged the order of
punishment or his transfer before the competent authority or the Court
and the said order became final. He was only aggrieved with his
posting to the Branch Office, Bhagwantnagar, Unnao. Instead of joining
his new place of posting, he continued writing letters. In terms of
Clause XVI of the Bipartite Agreement, in case a workman absents from
work consecutively for 90 days or more, without submitting any
application for leave, the Bank is entitled, after 30 days’ notice, to
conclude that the employee has no intention to join duty and is deemed
to have voluntarily retired on expiry of the notice period of 30 days.
The relevant Clause is extracted below:
“Clause XVI- Voluntary Cessation of Employment
by the Employees
Where an employee has not submitted any application for
leave and absents himself from work for period of 90 days
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 employment in India or the
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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 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 has no intention of joining duties and
furnishing necessary evidence, wherever 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 for 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 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 banks right to
take any action under law or rules of service.”
10. A person aggrieved by the order of transfer cannot sit at
home and decide on his own that the order is illegal or erroneous and
he will not comply with the same. If the workman had any grievance,
he could have availed of his remedy available against the same;
otherwise, he was duty-bound to comply with the same. Failure to avail
of any remedy also would mean that he had accepted the order and
was duty-bound to comply with the same. At a later stage, he could not
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take a plea that the order being erroneous, no consequence would
follow for its non-compliance.
11. On 20.12.1983, a letter was issued to the workman
reminding him that despite his transfer to the Branch Office,
Bhagwantnagar, Unnao, he had not yet reported for duty. He was given
ten days’ time to report for duty or latest by 05.01.1984. It was stated
that otherwise, it shall be presumed that he was absenting
unauthorisedly and disciplinary action would be taken against him in
terms of the Bipartite Agreement. This was followed by another letter
dated 05.01.1984. The workman was given ten days’ time to join the
duty from the date of receipt of the letter or latest by 20.01.1984,
whichever was earlier. Further, the intention of the workman was quite
evident from the subsequent events which remained undisputed,
namely, that he intended to join legal practice which he did, as
admittedly in the year 1985, he got himself enrolled as an Advocate and
is in active practice. The communication dated 30.01.1984 from the
Bank to the workman shows that the workman had personally
submitted a letter dated 24.01.1984 to the Regional Manager, Lucknow
Region of the Bank. As per the direction of the Bank, the workman was
given time upto 06.02.1984 for reporting for duty. It is evident from the
communication dated 01.02.1984 addressed by the workman to the
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Bank that he was in the knowledge of all the developments and further,
being a Law Graduate, he very well knew the consequences of failure
to challenge an order and not complying with the same. He would also
be aware of the Bipartite Agreement and the consequences mentioned
therein of his absence from duty. In the aforesaid letter, the workman
had mentioned that from January 1984, his subsistence allowance had
not been paid resulting in mental torture to him. His idea seemed to be
to remain in practice of law and at the same time enjoy payment of
subsistence allowance without working. The language of the letter also
clearly suggests that the workman was legally trained.
12. His over-smartness is evident further from the contents of
his letter where he claimed that as a consequence of non-payment of
subsistence allowance, he had to pass his life on open road and his
address for communication had been lost, thus making sure that he
could take a plea that none of the communications from the Bank were
received by him. In his subsequent letter dated 08.02.1984, in response
to letters from the Bank dated 05.01.1984, 09.01.1984 and 30.01.1984,
he again raised the issue regarding non-payment of his subsistence
allowance but did not mention his address. He stated that he could not
be compelled to report for duty at the Branch Office, Bhagwantnagar,
Unnao. The aforesaid communication from the workman clearly
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establishes the fact that he was in the know of the letters issued by the
Bank to him regarding his voluntary absence from duty for over 90
days. He was directed to report for duty to the Manager, Branch Office,
Bhagwantnagar, Unnao vide order dated 28.09.1983, but instead of
submitting his joining, he continued corresponding with the Bank.
13. The conduct of the workman is further evident from the
communication dated 06.03.1984, addressed by him to the Chairman
of the Bank informing that he had gone on hunger strike from
06.03.1984 onwards on account of non-redressal of his grievances. Yet,
he was smart enough not to furnish his address in the said letter.
Though the period of 90 days had already expired after 28.09.1983 and
the workman was absenting from duty without any application despite
repeated notices served upon him, still a notice was sent by the Bank
to the workman at his last known two addresses on 05.10.1984 referring
to Clause XVI of the Bipartite Agreement specifically stating that in case
of his failure to join duty within 30 days, he shall be deemed to have
voluntarily retired from service.
14. Notice was also published in Lucknow and Allahabad
Editions of North India Patrika on 08.10.1984. This was done as an
abundant caution as the workman had not been furnishing his address
in any of his communication though had been corresponding with the
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Bank. He was well aware of the communications sent by the Bank even
after the aforesaid notice was issued to him. He sent another letter to
the Bank on 17.10.1984, claiming payment of subsistence allowance
from January 1984 onwards. He sent yet another letter dated
18.10.1984 to the Branch Manager, Shahjahanpur informing that in case
any communication is received in his name from any other office, the
same may be served upon him but strangely enough he did not
mention at what address.
15. In his subsequent communication dated 20.10.1984, again
the workman claimed bonus but still did not furnish any address. Same
was the position in his subsequent communications also which we do
not wish to expound upon in this order as the sum and substance of the
same is that instead of complying with the order directing him to join
duty at the Branch Office, Bhagwantnagar, Unnao, the workman
continued a running correspondence with the Bank. In these
circumstances, it is apparent that the workman, who was legally
trained, was trying to drag the Bank into avoidable litigation instead of
complying with the orders. The Bank, vide order dated 05.12.1984,
considering his conduct, had treated him to have voluntarily retired
from service with immediate effect. The aforesaid order was sent at the
last two known addresses of the workman. Though the workman was
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claiming that he does not have any address for correspondence, but
immediately after the order dated 05.12.1984 was passed, he wrote a
letter dated 07.12.1984 to the Bank giving reference of the aforesaid
order directing his deemed voluntary retirement. He claimed that he
got knowledge of the aforesaid order from a Union leader when he
visited Lucknow on 05.12.1984. Even after gaining knowledge of his
deemed voluntary retirement on 07.12.1984, the workman kept quiet
for a period of six years before raising a dispute before the Assistant
Labour Commissioner on 28.08.1990.
16. The aforesaid conduct of the workman itself was sufficient
to non-suit him as has rightly been done. His argument that being on
suspension, he could not have been treated to have been voluntarily
retired as per the deeming provision, is merely to be noticed and
rejected, as during his suspension also, the relationship of master and
servant does not come to an end. All the rules and regulations
governing the post continue to apply. Merely because the Bank had
stopped paying subsistence allowance to the workman does not mean
that the workman was no more an employee of the Bank. The action was
taken by the Bank only to ensure that somehow or the other, the
workman joined his duty. However, it seems that he had some other
scheme in his mind. The idea seems to be to lay a claim on all his
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wages. Initially, to get subsistence allowance without working and
then claim reinstatement and back wages. If Clause XVI in the Bipartite
Agreement is seen, the workman could have been treated to have been
voluntarily retired immediately upon expiry of 90 days from 28.09.1983
as he had failed to join duty. Letter dated 05.01.1984 issued by the Bank
was duly acknowledged by him in his communication but still he failed
to join duty and continued writing letters. Despite this fact, the Bank
was magnanimous enough to have issued a final notice to the workman
on 05.10.1984, granting him 30 days’ time to report for duty. This is
also acknowledged by the workman. But for reasons best known to him
he failed to comply with the same.
17. For the aforesaid reasons, we do not find any error with the
order passed by the High Court. The same is upheld.
18. The appeal is accordingly dismissed.
…..……………..J
(HIMA KOHLI)
…………………..J
(RAJESH BINDAL)
New Delhi
December 14, 2023.
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