U.P. Singh vs Punjab National Bank Through Its Chairman and Managing Director

2023 INSC 1077 REPORTABLE

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)

JUDGMENT

RAJESH BINDAL, J.

1. The workman is before this Court impugning the order1

passed by the Division Bench of the High Court2 in an intra court

appeal3, whereby the order4 passed by the learned Single Judge in the

Writ Petition5 was upheld.

Signature Not Verified Digitally signed by 1 SONIA BHASIN Order dated 10.02.2011.

Date: 2023.12.15 11:07:20 IST Reason: 2 High Court of Delhi 3 Letters Patent Appeal No. 481 of 2010 4 Order dated 26.02.2010.

5 Writ Petition No. 7834 of 2003 1

2. The learned Single Judge of the High Court had set aside

the award6 of the Tribunal7. 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

that the workman was appointed with the Bank8 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

Clause XVI9 of the Bipartite Agreement10 between Indian Banks’

Association and Workmen Unions, vide order dated 05.12.1984, the

6 Award dated 27.08.2003.

7 Central Government Industrial Tribunal-cum-Labour court 8 Punjab National Bank 9 Clause XVI- Voluntary Cessation of Employment by the Employees 10 Fourth Bipartite Agreement dated 17.09.1984.

2 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

3 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

4 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.

5

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

6 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

7 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

8 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

9 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

10 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

11 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

12 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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