TaxTMI 
TaxTMI 
2000 (4) TMI 796
X X X X Extracts X X X X
X X X X Extracts X X X X
....thwith with continuity of service. No back wages. Calculated upto the date of reinstatement, the I party (Dayananda) is not entitled to earn increments for the period during which he had not worked. Reference accepted in part accordingly." Cause of Dayananda, the workman was taken by the first respondent. The Award arose out of following question, which was referred to the Tribunal for adjudication : "Whether the action of the management of Syndicate Bank in terminating the services of Sri D.K. Dayananda, Clerk Cottonpet Branch of Syndicate is justified? If not, to what relief the workman is entitled to?" We may now narrate the circumstances which led the Central Govern-ment to make the reference of the industrial dispute aforesaid. In 1975 Dayananda was appointed as Clerk-cum-Typist on probation in the Bank. Subsequently he was confirmed. In November, 1983 he was transferred to Cottonpet Branch of the Bank where he was to joint his duty on or before April 3, 1984. He was relieved from the Branch where he was working, on March 31, 1984 on his transfer to Cottonpet Branch. From April 1, 1984 to December, 1985 out of 628 working days Dayananda worked only for 46 days. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yment 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 employ-ee' 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 has no intention of joining duties 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 manage-ment 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's service on the expiry of the said notice. In the event of 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". By order dated December 19, 1985 by virtue of Clause 16 of the Bipartite Settlement as aforesaid the Bank treated Dayanand....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made by the I party, the II party recalled him to duty on humanitarian grounds. It is clear from the material on record that the I party has worked only for 46 days from 1.4.84 to 19.12.85. He was continuously absent from 8.4.85 without obtaining leave, though his leave was refused. This notice Ex. M.10 intimating the I party that his leave was rejected has been served on the I party. The I party stated that he met with an accident and he was continuously ill. He has not placed any convinc-ing material to prove this. 14. The Nationalised Banks have been working under loss. The unsatisfactory conduct of I party cannot lose sight off. Against the background of Ex. M.4 it is highly probable that I party workman was not without any employment all these days. If the first party is granted back wages, in my opinion, it will amount to repairing penurious Peter to pay prosperous Paul." Now the Bank was aggrieved. It filed a writ petition under Article 226 of the Constitution in the High Court of Karnataka which, as noted above, was dismissed by the learned single Judge by order dated June 25, 1998. Learned single Judge observed it was not in dispute that the worker had absented and w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... besides continuous service. Certainly this part of the award call for modification. If the worker is to be reinstated with continuous service, practicality he loses nothing. Back-wages cannot be awarded, as there is some evidence that he would have been otherwise employed. It is a case where the reinstatement should be ordered without back-wages. There is no gain saying that the absence was unauthorised. Taking into account all the circumstances, I feel the proper order would be to direct the Management to reinstate the worker. The worker will not be entitled to any wages for the period from the last date of absence i.e., from 3.4.1984 till the date of the award. Besides he will not be entitled to continuity of service for the period from 1.4.1984 till the date of award of the Industrial Tribunal. While fixing the wages on reinstatement he will not be entitled to count any increments or wages earned for the period from 1.4. 1984 till the date of the award, i.e., 26.9.1994. He will earn the increment only from 26.9.1994 the previous increment being awarded to him on or before 1.4.1984." Learned single Judge noticed that Dayananda was being paid wages from September 26, 1994 unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as the case may be. The workman not reporting for duty within 8 calendar days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the muster-rolls in such an eventuality. the Standing Orders workman lost his lien on his appointment and he was not entitled to reinstatement. From the Award of the Labour Court matter came to this Court under Article 136 of the Constitution. There could not be automatic termination under the Certified Standing Orders on absence without or beyond the period of sanctioned leave for more than eight days. This Court said that the principle of natural justice and duty to act in just, fair and reasonable manner must be read into the Standing Orders. So the termination under the Standing Orders without holding any domestic enquiry or offering any opportunity to the workman was held to be violative of the principles of natural justice. This Court observed: " 12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce and subsequently he mentioned "on medical grounds". He did not send any medical certificate and did not disclose his leave address. All this time Corporation was being approached by the police to inform them the whereabouts of the workman as he was an accused in a murder case. On November 30, 1988 Corporation informed the workman that his leave on medical ground was not sanctioned as his applications were not supported by medical certificates and that he was liable to be treated as an unauthorised absentee. The workman was, therefore, called upon to submit his explanation, if any, within 15 days of receipt of the letter. In reply thereto workman stated "baldly" that he was suffering from chest plain for quite some time and that he had consulted a specialist outside HPC for personal reasons and that medical certificate would be produced at the time of this joining. Under these circumstances Corporation passed order date January 5, 1989. Workman approached the Gauhati High Court, which set aside the order of the Corpo-ration and directed reinstatement of the workman with 50 per cent back wages. This led the Corporation to come to this Court. This Court said that from the record th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... remained unauthorisedly absent for more than 6 months consecutively which obliged the appellant-Corporation to issue communication to the first respondent calling upon him to explain. Unfortunately, the first respondent, for reasons best known to him, has not availed himself of the opportunity as seen earlier but replied in a halfhearted way which resulted in the impugned order. Therefore, under the circumstances, it cannot be said that the principles of natural justice have not been complied with or the circumstances require any enquiry as contemplated under Rule 25." This Court was thus of the view that there "was no good reason for the High Court to interfere with the impugned order of the appellant-Corporation dated January 5, 1989". In Uptron India Ltd. v. Shammi Bhan and Another, [1998] 6 SCC 538, workman was permanent employee of the appellant. On November, 7, 1984 she proceeded and remained till January 29, 1985 on maternity leave. Thereafter she allegedly remained absent with effect from January 30, 1985 till April 12, 1985 without any application for leave and consequently by order dated April 12, 1985 appellant informed the workman that her services stood autom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....held : "A domestic inquiry may be vitiated either for non-compliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well recognised. So the employer is entitled to adduce evidences, for the first time, before the Tribunal even if the employer had held no inquiry or the inquiry held by the employer is found to be perverse." Two principles emerge from the decision (1) principles of natural justice and duty to act in just, fair and reasonable manner have to be read in Certified Standing Orders which have statutory force. These can be applied by Labour Court and Industrial Tribunal even to relations between management and workman though based on contractual obligation; and (2) where domestic inquiry was not held or it was vitiated or some reason the Tribunal or Court adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record. In the present case action was taken by the Bank under Clause 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pe or real meaning. There are two essential elements of natural' justice which are : (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, e.g., a party must have due notice when the Tribunal will proceed; Tribunal should not act on irrelevant evidence or shut out relevant evidence; if the Tribunal consists of several members they all must sit together at all times; Tribunal should act independently and should not be biased against any party; its action should be based on good faith and order and should act in just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda had voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquir....