Holding

The reinstatement order stands, but the question of back‑wage liability must be reconsidered by the High Court, as the 30‑day period is reckoned from service of notice and the gainful‑employment issue was not duly examined.

Summary

The appellant, General Manager of Vijaya Bank, terminated the employment of the respondent clerk on grounds of repeated unauthorised absences, issuing notices requiring him to report within 30 days. The respondent reported within the stipulated period after each notice, but the bank refused his re‑entry and treated him as having voluntarily retired. The Industrial Tribunal upheld the termination, finding the respondent was gainfully employed elsewhere, while the Allahabad High Court reversed the decision, ordering reinstatement with full back wages. On appeal, the Supreme Court held that the 30‑day period must be counted from the date the notice was served, which the respondent complied with, and that the High Court erred by granting back wages without examining the gainful‑employment issue. The Court upheld the reinstatement order but remitted the question of back‑wage entitlement to the High Court for fresh consideration, allowing the bank to conduct a departmental enquiry if desired.

Issues considered

The correct computation of the 30‑day period for reporting to duty under the notice issued by the employer.
Whether the termination of the workman amounted to a lawful voluntary retirement under the Industrial Disputes Act, 1947.
Whether the workman was gainfully employed during the period of alleged abandonment, affecting his entitlement to back wages.
Whether the High Court erred in ordering full back wages without addressing the gainful‑employment issue.

Legislation cited

Industrial Disputes Act, 1947

Subjects

Industrial disputeUnauthorised absenceNotice periodReinstatementBack wagesGainful employmentVoluntary retirementTribunalHigh CourtSupreme Court

Judgment

GENERAL MANAGER, VIJA YA BANK AND ANR. A
v.
PRAMOD KUMAR GUPTA

AUGUST 24, 2006

[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.] B

Labour Laws:

Industrial Disputes Act, 1947:
c
Workman unauthorisedly abstainedji-om duty-Notice-He did not report
for duty within 30 days from the issuance of notice-Employer ordering his
voluntary retirement from service-Industrial dispute-Tribunal held action
of the employer in retiring him from service justified-High Court directing
the employer to reinstate him with back wages-On appeal, Held: Since the D
notice period of 30 days has to be reckoned only from the date of service of
the notice, the workman had joined the duty well within the permissible tinie
limit-Hence, the order passed by lhe High Court ordering his reinstatement
shall stand-However, High Court while directing reinstatement of the workman
with full back wages and consequential benefits did not examine the question
as to whether the workman was gainfully employed or not during the relevant E
period-Hence, the matter is remitted to High Court to examine the question
of payment of back wages aji-esh.

The appellant is the General Manager of a Bank wherein the
respondent was employed as clerk. The respondent-workman abstained
from duty without any leave application. The bank issued notice dir_ecting F
him to report for duty within 30 days. The respondent reported back to
duty within ten days. He again abstained from duty without any prior
intimation. The bank issued second notice to him, which was received by
him on 14.09.1992. When he reported for duty on 12.10.1992, he was not
allowed to join the duty and he was ordered t1J be retired from the service. G
•. The respondent raised an industrial dispute. The matter was referred to
an Industrial Tribunal. The Tribunal held that the action of the
Management in retiring him from service was wholly justified and lawful.
Aggrieved, the respondent filed a Writ Petition in the High Court, which

- was allowed by the High Court. Hence the present appeal.
3~ H
370 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A The appellant-bank contended that the respondent-workman has not
discharged his burden by adducing any evidence to show that he was not
gainfully employed since his retirement from service; and that the High
Court erred in ordering full back wages to him in the facts and
circumstances of the case.

B The respondent submitted that he had reported for duty within the
notice period but he was not allowed to join duty and, therefore, he cannot
be penalised for the mistake committed by the employer in not permitting
him to join the duty; that the procedure to deal with unauthorised absence
of staff members has not been followed by the appellant-bank; that the
C notice calling upon the respondent to report for duty within 30 days from
the date of publication of the notice and not 30 days from the date of its
issuance as wrongly stated in the order of termination; that it is settled
position in law that an order shall not be effective unless it is published
and communicated to the officer concerned; that the respondent was not
gainfully employed since his retirement from the servke; and that since
D the bank had prevented hi1n from joining duty though he was not at fault,
he is entitled to full back wages.

Partly allowing the appeal, the Court

HELD: I.I. The High Court has not considered the question as to
E whether the respondent was gainfully employed or not during the relevant
period in question. The High Court has also not adverted to the categorical
finding recorded by the Tribunal on this aspect. (373-BI

1.2. The High c.ourt without considering the relevant isso.1e has
ordered the appellant-bank to reinstate the respondent-workman on the
F post held by him with full back wages with all other consequential benefits,
which is not correct. (373-CI

1.3. The period of 30 days tias to be reckoned only from the date of
service of the notice. If that date is taken into consideration, the respondent
G has joined the duty well within 30 days. (374-A(

1.4. The matter is remitted to the High Court to consider the question
of payment of back wages for the period in question afresh. The appellant
bank is free to hold any departmental enquiry against the respondent-
workman for his absence from duty during the relevant period. Since the
H matter is remitted to the High Court on the question of back wages only,
GENERAL MANAGER, VIJA YA BANK v. PRAMOD KUMAR GUPTA [LAKSHMANAN, J] } 71

- the respondent shall not be entitled for payment of any back wages during
the period in question which will depend upon the ultimate order that may
A

be passed by the High Court. However, the order passed by the High Court
ordering reinstatement shall stand. 1374-D-E-FI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3676 of 2006.
B
From the Judgment/Order dated 18.3.2005 of the High Courrt of
Judicature at Allahabad in Civil Misc. Writ Petition No. 24370/200 I.

K.T.S. iulsi, Subramonimum Prasad, Gopalakrishnan R. and Mrinmayee
Sahu for the Appellants.
c
R.G. Padia, Navin Chawla and Vikram Singh for the Respondent.

The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. Leave granted.
D
Heard Mr. K.T.S. Tulsi, learned senior counsel appearing on behalf of
the appellants and Dr.R.G.Padia, learned senior counsel appearing on behalf
of the respondent.

The appellant before us is the General Manager of Vijaya Bank. The
respondent was employed in the bank as a clerk. According to the bank, he E
abstained from duty without any leave application on 12.09.1991. On
13.05.1992, the bank issued notice directing him to report for duty in 30 days
time. On 11.06.1992, the respondent reported back to duty. Within ten days,
i.e., on 21.06.1992, the respondent again abstained from duty without any
prior intimation. On 08.09.1992, the bank issued second notice to the F
respondent. A copy of the said notice was also pasted on the notice board.
The said notice dt.08.09.1992 was received by the respondent on 14.09.1992.
According to the respondent, when he reports for duty on 12.10.1992, he was
not permitted by the bank since he has not joined duty on 08.10.1992, i.e.,
within 30 days from 08.09.1992. The respondent after four years raised a
dispute on 01.04.1996. He protested against the termination. Thereafter, the G
matter was referred to the Industrial Tribunal. The Tribunal in para 12 of its
order has held as under :-

"The record shows that the concerned workman remained absent
from duty without taking leave and without submitting any application
for leave from 12.11.91to10.6.92 and from 21.6.92 till the cessation H
372 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A of his employment according to the provisions of law. Even after
cessation of his employment in terms of notice dated 8.9.92, he did
not approach higher authorities of the bank for taking him in the
services of the bank. The record shows that he for the first time
moved an application to the General Manager of the bank on 11.4.96
without approaching the higher authorities against the order treating
B him to have retired from the service which was passed by the General
Manger of the Bank on 28.11.92. This shows that the concerned
workman was gainfully employed somewhere and was earning money
from other sources and that is why he kept mum for four years
without approaching higher authorities for getting job again in the
c bank. Sri Hedge M.M. l clearly stated on oath that the brother of the
concerned workman was carrying a business of share broker in a
shop in front of Jeoni Mandi Branch of the bank at Agra and the
concerned workman also doing the same business and profession
with his brother and that is why he was not interested in joining the
services of the bank. His evidence on this point goes uncontroye11ed.
D The concerned workman did not suggest to him that he was not
carrying on profession of share broker and the shop of his brother
was not in front of the branch of the bank in which he was carrying
on business of share broker. The evidence of M. W. I on this point
appears to be correct and it supports the contention of the management
E that the concerned workman was gainfully employed in other
profession and business and that is why he had no intention to join
duties in the bank and remained absent for several months without
moving any application for leave and kept mum for four years even
after cessation of his employment. In these circumstances, the case of
the management ·appears to be correct that the concerned workman
F was gainfully employed in other trade or business and had no intention
to join duties of the bank, and the decision of the bank that he had
relinquished and abandoned the service of the bank appears to be
fully justified."

G In view of the above finding, the Tribunal held that there is no illegality
on the part of the bank in taking action against the respondent-workman. The
Tribunal further held that the action of the Management in treating the
concerned workman to have voluntarily retired from service of the bank with
effect from 08. l 0.1992 was wholly justified and lawful. The reference was
answered by the Tribunal accordingly.
H
GENERAL MANAGER. VIJAYA BANK v. PRAMOD KUMAR GUPTA (LAKSllMANAN, l] 373
':;

Aggrieved against the order passed by the Tribunal, the respondent A
filed a Writ Petition No.24370/2001 in the High Court of Allahabad. The said
petition was allowed on 18.03.2005.

We have carefully perused the order passed by the High Court. A
perusal of the order passed by the High Court would show that the High
Court has not considered the question as to whether the respondent was B
gainfully employed or not during the relevant period in question. The High
Court has also not adverted to the categorical finding recorded by the Tribunal
on this nspect. The High Court directed the appellant bank to reinstate the
respondent on the post held by him with continuity in service and that the
respondent shall also be entitled to other consequential benefits to which he
is entitled to in accordance with law. The High Court, in our opinion, without
c
considering the relevant issue has ordered full back wages with all other
consequential benefits which, in our opinion, is not correct. It is argued by
Mr. K.T.S. Tulsi, learned senior counsel for the appellants that the respondent-
workman has not discharged his burden by adducing any evidence that he
was not gainfully employed. He has also not shown any acceptable material D
that he was not gainfully employed and, under these circumstances, ordering
full back wages to the respondent by the High Court without considering the
merits of the claim by the bank is not correct and that the approach made by
the High Court in ordering full back wages cannot, at all, be countenanced
in the facts and circumstances of this case.
E
The argument advanced by learned senior counsel for the appellants is
opposed by the learned senior counsel for the respondent-workman. According
to the learned senior counsel for th~ respondent, even though the respondent
had reported for duty to the bank he was not allowed to join duty and,
therefore, he cannot be penalised for the mistake committed by the bank in F
not permitting the respondent to join the duty. He also submitted that the
procedure to deal with unauthorised absence of staff members has not been
followed viz. the Bipartite Settlement and codified Circular No. I01 of 1993.

Dr. R.G. Padia further submitted that the notice dated 08.09.1992 called
upon the respondent to report for duty within 30 days from the date of G
publication of this notice and not 30 days from the date of issue as wrongly
stated in the order of termination. The respondent had reported for duty on
12.10.1992 which is well within 30 days.of the date of service of notice.
Further it is settled position in law that an order shall not be effective unless
~
it is published and communicated to the officer concerned. We see much
H
374 SUPREME COURT REPORTS [2006) SUPP 5 S.C.R.

A force in this contention.
In our opinion, the period of 30 days has to be reckoned only from the
date of service of the notice namely, on 14.9.1992. If that date is taken into
consideration, the respondent has joined the duty well within 30 days namely,
on 12.10.1992.
B
Dr. Padia further submitted that the Tribunal was wrongly persuaded
by the oral testimony of th~ witness of the bank which lacked any basis in
the pleadings or prove any form of document. According to him, the
respondent was not gainfully employed and that the said finding is totally
perverse. It is submitted that the bank only prevented the respondent from
C joining duty and that the respondent is not at fault and, therefore, he is
entitled to full back wages.

We, therefore, remit the matter to the High Court to consider the question
of payment of back wages for the period in question. We request the High
D Court to consider the matter afresh on the question of back wages only. The
appellant bank is also free to hold any departmental enquiry against the
respondent-workman for his absence from duty during the relevant period.
Since the matter is remitted to the High Court on the question of back wages
only, the respondent will not be entitled for payment of any back •vages
during the period in question which will depend upon the ultimate order that
E may be passed by the High Court. The order passed by the High Court
ordering reinstatement shall stand.

It is stated by Dr. R.G. Padia, learned senior counsel that the respondent
has availed some loan from the bank for the purpose of purchasing a residential
house. It is also stated that he has committed default in payment of instalments
F of the said loan to the bank. Since the matter is remitted back to the High
Court, he requested this Court to direct the bank not to sell the residential
house for non-payment of the instalments of the loan availed by him for the
purpose of residential house till the High Court takes final decision. The
request is accepted. It is ordered accordingly.
G The appeal is accordingly allowed in part as indicated above. No costs.

S.K.S. Appeal partly allowed.