GENERAL MAGANER NANDED DIST.CENTRAL CO-OP BANK v. MOHANLAL H SHARMA

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2. The respondent was the complainant in Complaint U.L.P. No.152/1984 in the Court of Judge, Labour Court, Aurangabad and the present petitioners were the respondents. Parties hereinafter are referred to their status as the complainant and the respondents. This complaint was filed by the complainant, under Section 28 read with Item No.1 of Schedule 4 of M.R.T.U. and P.U.L.P. Act, 1971. (hereinafter referred to as Act of 1971 for short). In this complaint, declaration was sought that the termination order/notice dated 13-08-1984 bearing No.Admn./2789/84-85 is illegal, bad and unjustified without propriety and is liable to be quashed by declaring that it is unfair labour practice. Reinstatement in the circumstances, was also sought in this complaint. This complaint is filed on September, 14, 1984. This complaint has been followed by an application under sub Section 2 of Section 30 of the Act of 1971. In response to this application under Section 30(2) of the Act of 1971, reply/say was filed on behalf of the respondents. The learned Judge, Labour Court, had granted ad interim relief under Section 30(2) of the Act of 1971. There is no dispute that the

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complainant was, working with the bank after alleged termination/loosing of lien, by way of interim order passed by the Judge, Labour Court, as well as the Revisional Court also.

3. The learned Judge, Labour Court, Aurangabad, considering pleadings of the parties, framed three issues. Issue No.1, was, regarding alleged unfair labour practice of the respondents, on account of termination of the services of the complainant. Issue No.2, was, in respect of entitlement of the complainant for declaration sought. Reinstatement and claim of back wages, was Issue No.3 in the complaint. After considering evidence, learned Judge, Labour Court, allowed the complaint and directed reinstatement of the complainant in service with continuity with effect from September 14, 1984. Entitlement of the complainant, for back wages excluding for the period during which he was given reinstatement in service in pursuance of the court's order was also granted, in this judgment and award of learned Judge, Labour Court, on November, 09, 1989. This order was the subject matter of the Revision Application (U.L.P.) No.100/1989 before the Member, Industrial Court, Aurangabad. After

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hearing the parties, learned Member, Industrial Court, Aurangabad, dismissed the revision by judgment and order passed on September 12, 1990. These two orders, therefore, are challenged in this writ petition, as noted above.

4. The learned counsel for the petitioner Shri. Shelke, submits, that the service conditions, in terms of Standing Orders, were in existence. He does not dispute the relationship between the parties as employer and employee. According to him, Standing Orders, have been approved by the competent authority under Section 35 of the Bombay Industrial Relationship Act, 1946. He has made available copy of the Standing Orders which is marked 'X' for identification and taken on record. The action taken by the bank, is neither dismissal nor the termination, and is intimation to the complainant that he has lost his lien over the services. This action, according to the learned counsel for petitioners, is in accordance with the Regulation concerned i.e. 11(g) of the Standing Orders. He also invited my attention to the Regulation No.16 defining various misconduct. He also points out Regulation No. 20(a) of the Settlement of Standing Orders under

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sub-section 2(35) of Bombay Industrial Relationship Act,1946 i.e. Annexure-X. Shri. Shelke, for the petitioner has relied on the judgment of this Court as well as the judgment of the Apex Court, which I would refer at appropriate stage.

5. The learned Counsel Shri. Sawaji urged, that the action of the bank is dismissal of the complainant from the services. According to him, it is a misconduct alleged against the complainant by the respondent. No domestic enquiry has been held and such action of the bank, therefore, is per se illegal. He relied on various judicial pronouncements to which I would refer at appropriate stage. According to him, the complainant is entitled for back wages.

6. At the outset, it is to be noted that the action taken by the petitioners is dated August 13, 1984 and was to be effective from September 14, 1984. Shri. Shelke, submits that the complainant was due for superannuation somewhere in the year 1990-91. Advocate for the respondent Shri.Sawaji, submits that such superannuation, should have been in the year 1992. Both the

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learned counsel agrees that however the complainant was continued with the service of the bank till December 1996. Shri. Shelke, had a grievance, regarding further alleged misconduct of the complainant, in relation to manipulation of the record containing his date of birth. That is not the subject matter in the present writ petition, and therefore, I am not expressing any opinion on that point. It is to be noted that now in this writ petition, question of back wages, for the period when the complainant was not working with the bank remains to be decided and determined in relation to the action taken by the bank. I am, therefore, restricting myself, to this aspect of the matter.

7. With the assistance of the learned counsel for the parties, I have read relevant Regulation No.11(g), which is reproduced hereinbelow.

. 11. Leave Procedure of Granting Etc.

(g) An employee remaining absent on duty beyond the period of leave originally sanctioned or subsequently extended shall be liable to loose lien on his appointment, unless he returns, within eight days of the expiry of sanctioned leave and explains, to the satisfaction of the Manager, his inability to return on the due date. Any employee, who looses lien but reports for duty within fifteen days of the expiry of his leave, shall be kept on the waiting list, if he so

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desires, in writing. An employee not reporting for duty within fifteen days of the expiry of the leave shall be treated as having left his employment, after serving him proper notice. This regulation, considers the situation of an employee remaining absent on duty beyond period of leave originally sanctioned or subsequently extended. It appears from this regulation that the employee of the respondent bank should proceed on sanctioned leave alone. The extension of leave sometimes, necessitates. This regulation, therefore, contemplates that such extension also has to be presanctioned from the bank. Consequences which can be gathered from this regulation, are three in number. If employee remains absent on duty beyond period of leave originally sanctioned or subsequently extended, shall be liable to loose lien on his appointment. However, it is provided on return within eight days of the expiry of the sanctioned leave if he explains to the satisfaction of the Manager of the bank, his inability to return on the due date, is absolved from the consequences of this regulation. It is further provided, if any employee, who does not explains to the satisfaction of the Manager and consequently has lost lien, however reports for duty within fifteen days of the expiry of his leave, shall be kept on wait list of the bank, if

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such employee desires and communicates his desire in writing to the Manager. The third contingency considered, is not reporting of such absent employee for duty within fifteen days of the expiry of the sanctioned leave, shall be treated as having left his employment, after serving him proper notice. The gist of this regulation, therefore, is that ordinarily the employee has to obtain presanction of leave prior to proceeding on such leave. As noted above, certain contingencies/consession are given. However, beyond that consequences, loosing of lien on his appointment, is provided. This regulation 11(g), in my view, cannot be said to be a misconduct. For this proposition, it is appropriate to refer to expression 'misconduct', provided under settlement of Standing Orders Exhibit-X. It is to be noticed that expression "misconduct" generally, has its own meaning and consequences. Here, we are not concerned with the general meaning of expression 'misconduct'. Parties i.e. employer and employee, have arrived at settlement by this Standing Orders Exhibit-X, in relation to the misconduct. This misconduct, is referred to in Regulation No.16 and certain acts and commissions on the part of employee, have to be considered as

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misconduct. It reads thus:

16.MISCONDUCT.

Any of the following acts and commissions on the part of an employee shall amount to misconduct.

a) Wilful in-subordination, or disobedience, whether or not in combination with another, of any lawful and reasonable order of a superior.

b) Going on an illegal strike or abeting, inciting, instigating or acting in furtherance thereof.

c) Wilful slowing down in performance of work or abetment or instigation thereof.

d) Attempting or committing of theft, fraud, or dishonesty in connection with the business or property or affairs of the Bank or its customers.

e) Failure to account for or deliver up, when they come in to his hands, or concealment, misappropriation or conversion of cash, securities, bonds, deed or other property of the Bank or its customers.

f) Giving or taking or attempting to give or take a bribe or illegal gratification to or from a customer or an employee of the Bank.

g) Habitual absence without leave or absence without leave for more than 8 consecutive days.

h) Habitual late attendance or late attendance for more than 3 occasions in a month.

i) Habitual absence from his Head Quarter on Sundays and Public holidays.

j) Habitual departure before the closure or departure for more than 3 occasions in a month.

k) Repeated breach of any law applicable to the Bank or any rules made there under or of Standing Orders.

l) Attempting to collect or collecting without the permission of the Manager any moneys within the premises of the Bank, except in so far as permissible under prevelent law.

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m) Speculation in stocks, shares, securities, or any commodity whether on his account or that of any other person.

n) Engaging in any trade, business or occupation within or outside the premises of the Bank.

o) Doing any act, or engaging in any business prejudicial to the interest of the Bank.

p) Drunkenness or riotous, disorderly or indecent behaviour on the premises of the Bank.

q) Commission of any act, subversive of discipline on the premises of the Bank or in connection with the working of the Bank within the premises of the Bank.

r) Habitual neglect of work or gross negligence in work.

s) Unauthorised disclosure, or divulgence or attempt thereto of information regarding the affairs of the Bank or any of its customers or any person connected with the business of the Bank, which may come into the possession of knowledge of the employee in the course of his employment.

t) wilful damage to any property of the Bank or its customers.

u) Holding or attempting to hold or attending Meeting on the premises of the Bank without the previous permission of the Manager.

v) Gambling or betting or attempting to gamble or bet on the premises of the Bank.

w) Failure or refusal to wear uniform of the Bank.

x) Failing to maintain cleanliness of person and dress.

y) Sleeping during office hours or working hours or during the period of assigned duty.

z) Loitering, idlying or wasting time during working hours or within the Bank, after authorised hours of work without permission or without sufficient cause.

a(a) Doing private or personal work within the

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Bank with or without tools or material belonging to the Bank without the previous permission of the Manager.

a(b) Engaging in other employment while in service of the Bank.

a(c) Refusal to accept a charge sheet, order, notice or other communication attempted to be served in accordance with Standing Orders. a(d) Knowingly or wrongfully interfering with the record of attendance or means of recording attendance of himself or any employee. a(e) Distributing , exhibiting within the bank hand-bills, phamplets, posters or cousing to be displayed by means of signs or writings or other visible representations, any matter without previous sanction of the Manager.

a(f) Resorting to or abetting instigating or other wise canvassing for a pen-down strike. a(g) Claiming or attempting to claim false money by way of expenses incurred by employee in connection with the work entrusted to him or in the course of his routine work including expenses in connection with transfer touring journey undertaken in connection with Bank's work. a(h) Preaching or inciting to violence. a(i) Habitual money lending.

a(j) Giving false information regarding one's name, age, father's name, qualification or previous service at the time of employment. a(k) Leaving work without permission or sufficient reason.

a(l) Commission of any act subversive of discipline on the Bank premises or while on duty or otherwise.

a(m) Causing loss in daily business transaction of the Bank due to negligence.

a(n) Destroy or attempt to destroy official record or to manipulate the record against the interest of the Bank or customer or to take ledgers and

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other important records outside the premises of the Bank or its offices.

a(o) Drunkunness, riotous, disorderly or indecent behaviour on Bank premises or of its offices or on duty otherwise.

a(p) Using Bank's property for private purpose without permission from the Competent Authority. a(q) Not to convey in time to registered office (Head office), regarding incidents detrimental to the interest of the Bank or to customer of the Bank.

In this misconduct, Regulation 16(g) needs to be considered. Misconduct 16(g) contemplates habitual absence without leave or absence without leave for more than 8 consecutive days. I have considered submissions of the learned counsel on this point. Here, it is indisputable that the complainant initially was working with the Head Office of the respondent Nanded District Central Co-operative Bank Ltd. He was transferred to the branch at Kinwat, District Nanded from 22-07-1983. It is also not in dispute that the complainant proceeded on leave from 25-07-1983. His sanctioned earned leave, was from July 25, 1983 to August 23, 1983. It is alleged by the complainant that he applied for extension of leave and accordingly, leave was extended from August 24, 1983 to September 27, 1983. For this factual aspect also, there is no dispute on behalf of the bank. Thus, uptill September 27, 1983 the

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complainant was enjoying sanctioned leave. Dispute starts from the extension of leave, from September 28, 1983 onwards. According to the complainant, he applied for extension of leave on September 24, 1983. According to the respondents, they have informed the complainant by letter dated November 10, 1983 about his leave account and called upon him to submit regular leave application alongwith medical certificate, counter signed by the Civil Surgeon. Actually, in this case, it is not the case of the respondents that the complainant has indulged into misconduct of habitual absence without leave or absence without leave for more than 8 consecutive days. From the facts, in my view, it is clear, that the case of the complainant, covers by Regulation No.11(g) of the Standing Orders.

8. The learned counsel for the respondent submits that there is no departmental enquiry held, even for the purposes of Regulation No.11(g). The learned counsel for the petitioner fairly concedes that no departmental enquiry in the case on hand, had ever taken place. His submission, on the contrary, that Regulation No.11(g) does not require any inquiry. For this

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purpose, I have referred to Regulation No.20(a) which reads thus :

20(a) : No order of punishment for misconduct shall be made except after holding an enquiry against the employee concerned in respect of the alleged misconduct excepting clause 'g' of Standing order No. 11 in the manner set for hereafter in clause (b).

Thus, it is apparently clear from Regulation No. 20(a) that holding of an enquiry against the employee concerned in respect of alleged misconduct, in clause 'g' is not necessary. In other words, action under Regulation No.11(g), has been taken out from the purview of holding of domestic enquiry for the misconduct, which are enlisted under Regulation No.16. If Regulation No. 11(g) and 20(a) are read together, it is clear, that such holding of a departmental enquiry, is not contemplated. The learned counsel for the respondent relied on various judicial pronouncements, which are enlisted hereinbelow.

(1) Delhi Cloth and General Mills Co.Ltd. v. Shambhuji Nath Mukharji and others, 1977 LAB IC

1965 (SC).

(2) Santosh Gupta v. State Bank of Patiyala, 1980

LAB IC 687 (SC).

(3) Puthiya Veetil Raghavan of Bombay v. M.K. Bhaskaran of Bombay and others, 1987 II CLR 439

(BHC).

(4) Hindustan Tin Works Pvt Ltd v. The Employees

1978 (37) FLR 240 (SC).

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(5) H.D. Singh v. Reserve Bank of India, 1985

(51) FLR 494 (SC).

(6) Kamlesh Sharma v. Union of India and others,

1989 I LLJ 128 (DB DELHI HC).

(7) Promer Sales Pvt. Ltd. v. Manohar Bondhur and others, MRTU & PULP CASES 1982 Page 339,

(BHC).

(8) Shriram Sahakari Sakhar Karkhana Kamgar Union and ors. v. S.V. Kotnis and others, MRTU & PULP CASES Page 570 (BHC).

(9) D.K. Yadav v M/s. JMA Industries, SC LABOUR

JUDGMENTS 1950-83 Page 763.

(10) H.M.T Ltd. v. Labour Court Court, 1983 (46), FLR 398 (Kerla HC).

(11) Gaurishankar Vishwakarma v. Eagle Spring Industries Ltd, 1998 I CLR 38 (DB BHC).

(12) Rajendra Prasad B.Nayak v. Arpee Electricals Pvt. Ltd.,& Others, 1988 II CLR 287 (BHC). In the case of Delhi Cloth and General Mills Co. Ltd., reference is made to Section 25F (a) (b) and non compliance thereof, is held to be invaliditing the order. In the matter of Santosh Gupta, the provision laid down under Section 2 (oo) and 25F, was considered and it is held that retrenchment includes every kind of termination. In the matter of Puthiya Veetil Raghavan of Bombay, it was held that irrespective of nature of action as punitive or discharge simplicitor, the petitioner was entitled to the relief of reinstatement with

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continuity of service and full back wages. In the matter of Hindustan Tin Works Pvt., Ltd., services of workman held to be illegally terminated and reinstatement with 75% back wages was awarded.In the matter of H.D. Singh, provision laid down under Section 2(oo), 25-B were considered and striking off the name of the appellant from the rolls was held to be retrenchment. It was held that the said order is in violation of Section 25-B. In the matter of Kamlesh Sharma, it was held that continuous absence of the employee for more than 15 days and action of employer without enquiry, striking off the rolls the name of employee was held to be illegal. In the matter of Promer Sales Pvt. Ltd., Section 25F and the fact that no enquiry or no show cause notice was considered and finding was recorded that was an unfair labour practice committed by the Company. In the matter of Shriram Sahakari Sakhar Karkhana Kamgar Union and others, it was held that workmen cannot be removed from service only on the basis of allegations which were not proved by evidence. In the matter of D.K. Yadav, and M/s. J.M.A. Industries Ltd., it was held, that termination of services without any enquiry and opportunity of hearing, is violating the principles of natural

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justice. The finding recorded by the Court, was based on evidence and judgment of the Labour Court, in the matter of D.K. Yadav and M/s. J.M.A. Industries Ltd.

. In my view, in this case, 11(g) is a regulation, which has been, separately listed to that of the misconduct listed, under Regulation No.16. The procedure for misconduct enlisted under Regulation No. 16, is laid down in Regulation No.20, i.e. holding of departmental enquiry etc. This regulation No. 20(a) clearly makes an exception to clause 11(g) of the Standing Order for which it is specifically mentioned that holding of depart mental enquiry is not necessary. In view of this Standing Order and on the back ground of the facts situation in the present case,in my view, absence of departmental enquiry, cannot be said to be per se illegal. The judicial pronouncements, have to be considered, in relation to the facts obtained in the cited judgment and the facts obtaining in the case on hand. I have, therefore, referred to various Regulations of the Standing Orders Exhibit-X in this case.

9. Notice, addressed to the complainant, is

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reproduced in the judgment of the Revisional Court. Notice is in vernacular. From this notice, it appears that, loosing of lien over the appointment, has been informed to the complainant. The complainant is also informed to attend the office of respondent-bank and seek withdrawal of sum, to which he is entitled to. It is indisputable that this notice was addressed by Registered Post A.D. It has been returned by the endorsement of postal authorities as 'not claimed'. On behalf of the complainant, it is submitted that he has not received notice. Fact remains that on 14-09-1984 alone he filed complaint in the court of Judge, Labour Court, and did not turn up to the respondent. In this back ground, submission on behalf of the petitioner that amount to which the complainant was entitled, was offered by this notice, has to be accepted. It is also not indispute that the letter from the respondent-bank dated 10-11-1983 was received by the complainant. The complainant has in clear terms admitted this receipt of the letter in his evidence. He states " it is true that by the letter dated 10-11-1983, the bank had informed him about leave available in my account". The learned counsel Shri. Shelke, for respondent had filed

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compilation which is marked by letter 'Y' for identification and taken on record. Said letter is dated 10-11-1983. The respondents have informed the complainant that he had availed earned leave from 25-07-1983 till 27-09-1983 (65 days). Thereafter, the complainant had addressed application seeking leave from 28-09-1983. However, it was not clarified, as to for how much days or period such leave was sought. The complainant had sought entire leave which was available on his credit at the time of this application. On the back ground of this application, by communication dated 10-11-1983, the respondents have informed the complainant that his leave account shows balance of about 120 days as half pay leave and 3 days earned leave. He was also informed to file appropriate application indicating dates and period of leave alongwith certificate/counter signature of Civil Surgeon. On receipt of such application, it was informed that the application can be considered. Despite the fact that, this communication was received by the complainant and has admitted accordingly in cross examination, no such application was sent to the respondents. The learned Judge, Labour Court, considered the death of mother of the complainant.

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It is to be noted that the mother of complainant died on December 23, 1983. The learned Judge, Labour Court, observed in its Judgment in Paragraph 6 that, " from the documentary evidence on record produced by both the sides, it is clear that the complainant had informed the respondent-bank from time to time about ailment, of his mother and son, on account of which, he could not attend the duties and for which, he had asked for leave". From compilation Exhibit-Y, it appears that two letters had been addressed by the complainant to respondents. First is dated 10-02-1984 and second is of 28-03-1984. The learned Judge, did not record these dates and had also not considered the provision laid down under Regulation No. 11 (g). The employee, cannot address such letters at any point of time according to his own sweet will especially when he was informed by the respondents by communication dated 10-11-1983. In my view, finding of the Judge, Labour Court, is perverse. On such finding, reinstatement could not have been granted.

10. The learned counsel for the respondent had invited my attention to the provisions of Section

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25-F of the Industrial Disputes Act, 1947. According to him, there is no compliance of this Section 25-F. Advocate Shri. Shelke, for the petitioner submits that the provisions of the Act of 1947, are not applicable to the case on hand. Even otherwise, he submits, Section 25-F, (a) (b), have been complied with. He invited my attention to the notice addressed to the complainant dated 13th August 1984. This notice was addressed by Registered Post A.D. and has not claimed by the complainant. In this notice, retrenchment compensation was awarded and the complainant was directed to collect the said amount from the respondents. He admits, however, that specific amount of retrenchment compensation was not mentioned in this notice. In relation to Section 25-F (c), Shri. Shelke, relied on the judgment of the Apex Court in the case of Bombay Union of Journalists and others v. The State of Bombay and another, reported in, A.I.R. 1964 Supreme Court, 1617. The Apex Court, observed, that provision laid under Section 25-F (c) is directory. Condition contained in clause (c) is not a condition precedent. Shri. Shelke, learned counsel, also relied on the judgment of learned Single Bench of this Court, in the matter of

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Ramesh Pandharinath Taharabadkar v. Executive Engineer, Jayakwadi Project Stage No.2, Divn.No.1, Beed and others, reported in, 2000 III, CLR 92. The learned Single Bench of this Court in the matter of Ramesh Pandharinath Taharabadkar, observed, that the workmen were informed to collect retrenchment compensation from office and therefore, contention cannot be accepted. The learned counsel Shri. Shelke, has invited my attention to Section 25-J of the Act of 1947. According to him, sub-section 2 of Section 25-J, declares that anything contained in this Chapter shall be deem to effect provision of any other law for time being inforce in any State in so far as that law provides for the settlement of industrial dispute but the rights and liabilities of employees and workmen in so far as they relates to lay off and retrenchment shall be determined in accordance with the provisions of this Chapter. According to him, provision laid down under Chapter No. 5A, are alone referred to in sub-section 2 of Section 25-J. In other words, according to him, provision laid down under Section 25-N relied on by learned counsel Shri. Sawaji for complainant comes in Chapter 5B and compliance thereof is not mandatory.

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11. As noted above in this Writ Petition granting of reinstatement, by this Court, is out of question. As noted above foregoing paragraphs by way of interim relief, the complainant was reinstated, and has worked with the respondents uptill his retirement. I am not entering into the controversy of the complainant and allegation of manipulation. However, now, there is no question of reinstatement of the complainant. This petition relates to the payment of back wages, for the period, for which the complainant was not working with the respondent. In this relation, the judgment of the Apex Court in the matter of Reserve Bank of India v. Gopinath Sharma, reported in 2006 (6) S.C.C. 221, needs to be referred. The principle of 'no work, no pay' is laid down, in this judgment by the Apex Court. In my view, therefore, the complainant, cannot be awarded with back wages for the period when he was not working with the respondents. However, I am making it clear that on the basis of this judgment, the respondents are not entitled to seek recovery of any salary paid to the complainant when he was reinstated by the interim order passed by the Labour/Industrial Court, and uptill 22nd

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May 1992, the date of superannuation which is alleged by the complainant himself.

12. In the result, this writ petition is partly allowed. The order passed by the Judge, Labour Court, in Complaint (U.L.P.) No.152/1984 is quashed and set aside. The order passed by the learned Revisional Court in Revision (U.L.P.) No. 100/1989 is also quashed and set aside. The complainant is permitted to seek withdrawal of the retrenchment compensation which was offered by the respondents in their notice dated 13th August 1984 in accordance with the provisions of law. Amount of Rs.10,000/- (Rs. Ten thousand only) which was deposited by the petitioner in this court and withdrawn by the complainant, shall be adjusted while making payment of retrenchment compensation to the complainant. Rule is made absolute in above terms. No costs.

[ S.B.DESHMUKH, J. ]

sut/u/AUG07/wp2967.90