LexVIVEKA NAND SETHI versus CHAIRMAN, J. AND K., BANK LTD. AND ORS.
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VIVEKA NANO SETHI A v. CHAIRMAN, J. AND K., BANK LTD. AND ORS. MAY 3, 2005 [N. SANTOSH HEGDE AND S.B. SINHA, JJ.] B Labour Law: Bipartite Settlement between Bank and workmen-Clause 2-Providing voluntary cessation of employment by employee on absenting from duty- C Interpretation and applicability of-Workman not resuming duty nor filing proper medical leave application after expiry of leave and also not giving satisfactory explanation for his absence despite repeated opportunities- Services dispensed with-Award directing reinstatement in service-Upheld by High Court-On appeal held: Bipartite Settlement being an admitted D document is to be considered in its proper perspective by Tribunal-Filing of medical leave application without annexing proper medical certificates not a bona fide act-Such application would not restrict invoc'ation of clause (2)- Also there was sufficient compliance of principle of natural justice-Hence, bank's appeal a/lowed-However, since workman did not file any affidavit, section 17-B cannot be applied and as such workman's appeal dismissed- E Industrial Disputes Act section 17-B-Estoppel. Appellant, cashier-cum-clerk with the respondent-bank, did not resume his duties after his leave had expired and did not file proper application for grant of medical leave with a valid medical certificate despite repeated opportunities. Bank issued notices and memorandums to F the workman and thereafter, in terms of clause (2) of the Bipartite Settlement between the bank and their workmen, services of the workmen were dispensed with. Central Government Industrial Tribunal-cum- Labour Court then passed an award directing workman to be reinstated in service with the benefit of past senice without any back wages. Both G Single Judge and the Division Bench of High Court upheld the award. Hence the present appeals. Allowing the Bank's appeal and dismissing workman's appeal, the Court 1095 H 1096 SUPREME COURT REPORTS (2005) 3 S.C.R. A HELD : 1.1. Clause (2) of the Bipartite Settlement entered into by and between the Management of the Banks and their employees is a complete code by itself which lays down as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. The settlement is clear and unambiguous. It should be B given a literal meaning. Clause (2) raises a legal fiction, whiCh is. of wide import. A bare perusal of the settlement clearly shows that it is for the employee concerned to submit a proper application for leave; and that on receipt of'a notice contemplated thereunder, the workman must either: (1) report for duties within thirty days; (2) give his explanation for his absence satisfyin~ the management that he has not taken any employment · C or avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his du!ies within thirty days or fails to file a satisfactory explanation, the legal fiction comes into force. Once the action on the part of the employer is found to be fair, the court in view of such legal fiction would call upon the workman to prove contra. (1103-B-C-D) D E F 1.2. The fact that there exists a Bipartite Settlement entered into by and between the Banks and their workmen is not in dispute. The workman was all along aware about the legal position inasmuch as, at all stages, viz., issuance of notices and memorandums, passing of the order of termination, the said settlement had been referred to. The Industrial Tribunal erred in proceeding on the basis that the Bipartite Settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. (1102-C-EI 1.3. It is not in dispute that after the period of leave came to an end, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum was issued and he was asked to join his duties. Despite receipt of the said memorandum, the workman did not join duties pursuant whereto 'he was served with a show cause notice. He G was required to resume his duties by the mentioned date otherwise he would be deemed to have been discharged from the services of the Bank. Opportunities after opportunities indisputably had been granted to the workman t
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