for termination of the services of the respondent no.1 are
justified. The petitioner are relying upon Clause III(d) of
the settlement dated 06.05.1997 in support of their
contention that the petitioner is entitled to terminate the
services of the respondent no.1. The said Clause reads
thus :
“(d) An employee remaining absent on
duty beyond the period of leave already
sanctioned for him, shall cease to be an
employee of the bank unless he returns
within eight days after the expiry of such
leave and furnishes good cause to the
satisfaction of the manager/chairman of
his inability to report for duty on the due
date”. :50:
20. On going through the said clause in cases in
which the employee has remained absent from duty
beyond sanctioned period of leave he ceased to be an
employee of the bank unless he returns within eight days
after the expiry of such leave and furnishes good cause to
the satisfaction of the manager/chairman of his inability
to report for duty on the due date. In the present case,
the petitioner has not brought anything on record to show
up to when the leave of the respondent no.1 was
sanctioned. The learned Tribunal has taken note of the
fact that the respondent no.1 was sick and that the
respondent no.1 had sick leave to his credit during the
said relevant period. In order to imply that the employee
has ceased or abandoned his services, there must be a
total or complete giving up of duty so as to indicate an
intention not to renounce the services. Thus, the question
of abandoning the services is also a question of an
intention of the parties and normally such an intention
cannot be attributed to an employee without adequate
evidence in that behalf. This is a question of fact to be
determined in the light of surrounding circumstances of
each case. Only because action on the part of the
employee to avail of leave without any prior sanction
thereof or overstay despite of expiry of the period of
leave, it cannot be assumed that he is ceased to be an
employee of the bank. Admittedly, there is no legislation
in the present case which governs the right of the parties
to draw such inference. In the present case, from
September, 2000 to December, 2000 there were different
proceedings with regard to the transfer of the respondent
no.1 which were being examined by the Co-Operative
Tribunal as well as by this Court. The petitioner never
raised the contention that the respondent no.1 had
ceased to be their employee. The fact that the
respondent no.1 continued to be in services of the
petitioner was not disputed by the petitioner in any of
such proceedings. All these circumstances and taking
note that the respondent no.1 had accumulated sick leave
and privilege leave, the petitioner could not arbitrarily
debit double of the medical leave to come to the
conclusion that the respondent no.1 has failed to remain
present after the sanctioned leave. The petitioner has
acted arbitrarily in taking the action nor issued any show
cause notice to the respondent no.1 with that regard. The
question of assuming that the respondent no.1 had
ceased to be an employee automatically is totally uncalled
for as the petitioner ought to have sent a notice to the
respondent no.1 and conducted proper inquiry before
taking any such action. The learned Tribunal has
examined all these aspects and has come to the
conclusion that the petitioner is not at all justified to
terminate the services of the respondent no.1 for the
reasons stated in the letter of termination. It is also to be
noted that the learned Tribunal took note of the fact that
in the present case there was no allegation that the
respondent no.1 was habitual, unauthorised and
unjustifiably absent without applying for leave. The
learned Tribunal also noted that though no inquiry was
held, it was open to the petitioner to justify such
discharge which the petitioner failed to bring any evidence
with that regard. The learned Tribunal further noted that
no inquiry was held before issuing the order of
termination nor any request was made by the petitioner
to give them an opportunity to adduce any evidence for
justifying the action. The learned Tribunal further noted
that the evidence on record clearly indicate that the
respondent no.1 was sick and had applied for sick leave
w.e.f. 31.05.2000. No decision was taken on such
application and the transfer order was served during the
pendency of such application. The learned Tribunal
concluded at para 127 of the impugned award that the
impugned order passed by the petitioner was arbitrary,
illegal and totally in beach of the principles of natural
justice, equity and fair play. These findings which have
been arrived at by the learned Tribunal on the basis of
material on record cannot be said to be perverse and as
such I find no reason to interfere in the findings of the
learned Tribunal and consequently, the learned Tribunal
was justified to pass the impugned award by coming to
the conclusion that the termination of the services of the
respondent no.1 are unsustainable in law.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 40 OF 2004
The Goa Urban Co-op. Bank Ltd.,
V e r s u s
Mr. Rui A. E. Ferreira
CORAM : F. M. REIS, J
DATE : 21st July, 2014
Citation;2015(7) ALLMR 388
Heard Mr. G. Sardessai, learned counsel
appearing for the petitioner and Mr. R. Menezes, learned
counsel appearing for the respondent no.1. :2:
2. The above Writ Petition inter-alia seeks to quash
and set aside the award dated 30.08.2003 passed by the
learned Industrial Tribunal. By the impugned award the
learned Tribunal held that the order dated 29.12.2000
terminating the services of the respondent no.1 with effect
from 23.09.2000 were illegal, arbitrary and unjustified. The
respondent no.1 was accordingly ordered to be reinstated
with full back wages and all other benefits with continuity of
the services.
3. Briefly, the facts of the case are that the
respondent no.1 was appointed as a Clerk of the petitioner
Bank on 09.03.1981 and was thereafter confirmed to the said
post on 01.02.1983. The respondent no.1 was subsequently
promoted as a Junior Officer and posted initially in the Audit
Department somewhere on 11.09.1987. Thereafter, he was
also posted in the recovery department somewhere on
15.07.1991 and different other departments such as savings
and cash credit department. The record further reveals that
on 29.05.2000 the respondent no.1 was transferred as a
Junior Officer at Vasco at the petitioner's Bank. The order of
transfer was challenged by the respondent no.1 by fling an
application before the Registrar of Co-operative Societies. The:3:
Registrar by an order dated 11.08.2000 rejected the
application filed by the respondent no.1. Thereafter an
appeal was preferred before the Co-operative Tribunal which
came to be disposed of on 31.04.2000 thereby upholding the
order passed by the learned Registrar. The respondent no.1
thereafter challenged the order passed by the Tribunal before
this Court which uphold the said order by order dated
05.10.2000. Being dissatisfied with the order passed by the
learned Single Judge, a Letters Patent Appeal was filed before
this Court being L.P.A. No. 18 of 2000. It appears from the
records that in the said proceedings before this Court,
liberty was given to the respondent no.1 to make a
representation before the petitioner in connection with his
order of transfer. Accordingly, a representation was made by
the respondent no.1 which was under consideration. When
the matter was taken up somewhere in December, 2000
before the learned Division Bench, time was sought by the
petitioner to examine the representation and inform the
decision to this Court. But however, on 08.01.2001 when the
matter came up before the Division Bench, the petitioner
informed this Court that in the meanwhile the services of the
respondent no.1 were terminated with effect from September,
2000 by an order dated 29.12.2000. In view of the said:4:
order, the L.P.A. was held to be infructuous and the
respondent no.1 was asked to take remedy available to him
in law.
4. Thereafter, the respondent no.1 sought a reference
to the Tribunal in terms of the Industrial Disputes Act and the
Government by order dated 31.05.2001 referred the dispute
for adjudicate before the Tribunal. The Industrial Tribunal
thereafter framed the issues and by the impugned award
dated 30.08.2003 held that the termination order issued by
the petitioner against the respondent no.1 was arbitrary and
illegal. The said award is being challenged before this Court.
Another material aspect to be noted in the present
proceedings is that the reason for issuing the order of
termination was in terms of the settlement arrived at with the
workmen of the petitioner to which the respondent no.1 was
also a party wherein clause (III)(d) therein inter-alia provides
that the employee remaining absent on duty beyond the
period of leave already sanctioned for him shall cease to be
an employee of the bank unless he returns within eight days
after expiry of such leave and furnishes good cause to the
satisfaction of the management of his inability to report for
duty on the due date. It was the contention of the petitioner:5:
that as the order of transfer was issued in May, 2000 and
leave was not sanctioned to the respondent no.1, he had
ceased to be the employee which entitle them to terminate
the services of the respondent no.1.
5. Mr. Sardessai, learned counsel appearing for the
petitioner has advanced different contentions to point out
that the impugned award passed by the Tribunal is not
sustainable in law. It is his first contention that the reference
itself was not competent as according to him the respondent
no.1 was not a workman within the provisions of the
Industrial Disputes Act. The learned counsel further pointed
out that the respondent no.1 was carrying out supervisory
work which excluded from the definition of the word
'workman' under the Industrial Disputes Act. The learned
counsel thereafter has taken me through the work being
carried out by the respondent no.1 especially the fact that he
was working at the Head Office and working in the internal
audit department from 01.09.87 to 14.07.1991 and
thereafter, in the recovery department from 15.07.1991 to
04.02.1994 and subsequently, in the saving bank department
and cash credit department from 21.10.1998 and the work
which entail supervisory functions. The learned counsel:6:
thereafter has taken me through different judgments of this
Court to support his contentions. The learned counsel
thereafter brought to my notice the specific functions which
were being carried out by the respondent no.1 which
according to him would suggest that he was also performing
managerial functions. The learned counsel further pointed
out that in the course of his work with the petitioner there
were occasions when the respondent no.1 was representing
the bank before different judicial authorities besides the fact
that he was also supervising the work of other personnel of
the Bank's establishment. The learned counsel further
submits that all these functions would conclusively establish
that the respondent no.1 was performing supervisory
functions as well as managerial functions which are expressly
excluded from the definition of the word 'workman' under the
Industrial Disputes Act. The learned counsel thereafter has
taken me through the impugned award and pointed out that
the learned Judge has misconstrued the evidence on record
as well as the material produced by the petitioner to come to
the conclusion that the work performed by the respondent
no.1 was within the meaning of the word 'workman' under
the Industrial Disputes Act. The learned counsel further
submits that the findings of fact arrived at by the Tribunal:7:
misconstruing as well as the misreading the evidence on
record would disclose that the findings of the Tribunal on that
count are perverse which would call for interference by this
Court in the present Writ Petition. The learned counsel further
pointed out that the burden of proof to show that a person
comes within the meaning of word 'workman' is on the
employee. The learned counsel thereafter has taken me
through the cross examination of the respondent no.1 before
the Tribunal and pointed out that the admission by the
respondent no.1 to the effect that he was performing specific
functions itself would suggest that the respondent no.1 has in
fact admitted that he was performing supervisory and
managerial functions. The learned counsel has thereafter
taken me through the different paragraphs of the deposition
which he has also highlighted in the written synopsis to show
that the respondent no.1 was performing supervisory
functions. The learned counsel as such points out that the
findings of the Tribunal that the respondent no.1 was a
workman within the provisions of the Industrial Disputes Act
cannot be sustained and deserve to be quashed and set
aside.
6. Next contention of Mr. Sardessai, learned counsel:8:
appearing for the petitioner dealing with the merits of the
dispute raised by the respondent no.1, is that in terms of the
settlement to which the respondent no.1 himself was a party,
there is a specific clause which is referred to herein above to
the effect that in cases in which the employee remains absent
on duty beyond the sanctioned leave he would cease to be an
employee of the Bank. The learned counsel further pointed
out that in the present case the respondent no.1 was
transferred to Vasco where he never reported. The learned
counsel further pointed out that as the respondent no.1 had
not reported to his new assignment nor the authorities had
kept such transfer order in abeyance, the petitioner were
entitled in terms of the said clause to assume that the
respondent no.1 had ceased to continue to be their
employee. The learned counsel further pointed out that
though it was sought to be contended by the respondent no.1
that he was sick at the relevant time, the petitioner decided
to refer him to the medical board to be subjected to a
medical examination on 25.07.2000. The learned counsel
further pointed out that despite of such direction the
respondent no.1 failed to subject himself to the medical
examination before the said Board and as such his absence
from duty was without any sanctioned leave which entitled:9:
the petitioner to invoke the said clause to assume that the
respondent no.1 had ceased to be an employee of the
petitioner. The learned counsel further pointed out that the
learned Tribunal while examining the said aspect has relied
upon the deposition of the doctor which according to him
cannot be relied upon. The learned counsel thereafter has
taken me through the evidence of the doctor and pointed out
that the doctor himself does not support the version of the
respondent no.1 that he was sick to entitle him to be on
medical leave. The learned counsel further pointed out that
as leave was not sanctioned to the respondent no.1 and his
sickness has not been established, the Tribunal was not
justified to come to the conclusion that the respondent no.1
was entitled for medical leave which would negate the claim
of the petitioner to assume that he ceased to be their
employee. The learned counsel further pointed out that as the
respondent no.1 has not shown any justification for his
absence from duty nor cogent evidence produced to establish
that he was entitled for medical leave, the question of
justifying his absent as held in the impugned award is
erroneous, illegal and untenable. The learned counsel as such
points out that the findings of the Tribunal that there was
accumulation of medical leave in favour of the respondent:10:
no.1 up to January, 2001 is also unsustainable as according
to him during his absence he was paid full wages when he is
otherwise entitled only half pay during medical leave. The
learned counsel further pointed out that the findings of the
learned Tribunal that there was medical leave available to the
respondent no.1 which entitle him to be absent during the
said period is totally unjustified.
7. Next contention of Mr. Sardessai, learned counsel
appearing for the petitioner is that in any event the learned
Tribunal was not justified to direct the payment of full back
wages. The learned counsel further pointed out that it is the
discretion of the Court to direct the payment of back wages.
In this connection Mr. Sardessai, learned counsel has pointed
out that since the day the respondent no.1 was transferred
by the general transfers by the petitioner the respondent no.1
has resorted to different devices only to avoid his transfer at
Vasco. The learned counsel further pointed out that once the
order of transfer has been upheld by the learned Tribunal as
well as by the learned Single Judge of this Court, there was
no justification for the respondent no.1 to absent himself
from his duty. The learned counsel further pointed out that
absence from the services has been held to be a grave mis-:11:
conduct and as in the present case the respondent no.1 has
refused to accept the transfer order and resorted to different
proceedings only to delay such transfer without any
justification, would itself suggest that there is no case made
out by the respondent no.1 to exercise any discretion in his
favour to direct the payment of full back wages. The learned
counsel further pointed out that there is no material on
record to establish that the respondent no.1 was not working
during the said period and as such according to him the
question of directing the payment of full back wages would
not arise. The learned counsel further pointed out that
considering a big gap of time from the date of his termination
the petitioner which running a bank has lost confidence in the
services of the respondent no.1 and as such the question of
directing reinstatement with full back wages is not at all
justified. The learned counsel further pointed out that in such
circumstances and considering that the respondent no.1 has
already been paid compensation in terms of Section 17(b) of
the Industrial Disputes Act, the question of directing the
payment of full back wages in favour of the respondent no.1
is untenable in law and to that extent at least the impugned
award passed by the learned Tribunal deserves to be quashed
and set aside. The learned counsel has taken me through the:12:
impugned award and pointed out that the learned Tribunal
has misconstrued the relevant provisions of law as well as the
decisions cited by the petitioner to come to the conclusion
that the respondent no.1 is entitled to full back wages as well
as the reinstatement. The learned counsel in support of his
submissions has relied upon the following judgments.
1. 2005(3) SCC 232 in the case of Management
of M/s Sonepat Co-operative Sugar Mills Ltd., V/s
Ajit Singh.
2. 2004(10) SCALE 578 in the case of Cholan
Roadways Limited V/s G. Thirugnanasambandam.
3. 1994(5) SCC 737 in the case of H. R.
Adyanthaya V/s Sandoz India Limited.
4. 2008(5) BCR 865 in the case of Somnath
Tulshiram Galande V/s Presiding Officer, 2nd Labour
Court, Pune and others.
5. 2004(8) SCC 387 in the case of Mukesh K.
Tripathi V/s Sr. Divisional Manager, L.I.C. & Others.
6. 1995(II) CLR ( Bombay High Court ) in the
case of Indiana Engineering Works ( Bombay ) Pvt.
Ltd., V/s The Presiding Officers and others.
7. 2007(7) SCC 171 in the case of C. Gupta V.
Glaxo Smillkline Pharmaceuticals Ltd.:13:
8. 2007(1) SCC 491 in the case of Muir Mills
Unit of N.T.C. ( U.P. ) Ltd, V/s Swayam Prakash
Srivastava & Anr.
9. 1999(2) LLN 199 in the case of German
Remedies Limited V/s Michael Gabriel Lopes & Anr.
10. 2005(2) SCC 363 in the case of Kendriya
Vidyalay Sangathan V/s C. Sharma.
8. On the other hand, Mr. B. D'Costa, the learned
counsel appearing for the respondent no1 have supported the
impugned award passed by the learned Tribunal. The learned
counsel has pointed out that the issue of jurisdiction sought
to be raised by the petitioner before this Court to the effect
that the learned Tribunal could not entertain the adjudication
of the dispute was not raised before the learned Tribunal. The
learned counsel has pointed out that as such the contention
of the learned counsel appearing for the petitioner that the
reference itself was defective is unsustainable in law. The
learned counsel appearing for the respondent no.1 has
pointed out that the work which was being carried out by the
respondent no.1 was clerical in nature. The learned counsel
has thereafter taken me through the definition of the word
'supervisor' in Black Legal dictionary and other legal:14:
dictionaries to advance his contention that the respondent
no.1 was not carrying out any supervisory work. The learned
counsel further pointed out that the learned Tribunal has
rightly appreciated the evidence on record to come to the
conclusion that the respondent no.1 is a workman within the
provisions of the Industrial Disputes Act. The learned counsel
has taken me through the findings of the learned Tribunal and
pointed out the application on that count has been rightly
carried out by the learned Tribunal which does not call for
interference by this Court in the present case. The learned
counsel further pointed out that the learned Tribunal has
rightly applied the test to ascertain whether the respondent
no.1 was a workman within the meaning of the said Act. The
learned counsel has also relied upon the judgment of the
Apex Court reported in (1966 -II- LLJ -188) in the case of
State of Punjab Vs Amar Singh Harika to advance the
argument as to when the order of termination becomes
effective. The learned counsel thereafter has pointed out that
the question of holding that the respondent no.1 had
abandoned the services on account of his continued absence
from duty is totally misplaced as according to him the
respondent was in fact challenging the transfer before
different authorities as well as before this Court and during:15:
the said period the respondent no.1 was sick and unable to
report for duties. The learned counsel further pointed out that
the contention of the petitioner that as the respondent no.1
has received his full wages during the period of leave, his
leave had to be debited twice is totally unsustainable as it is
contrary to Rule 5(b) of the Industrial Disputes Act as no
consent of the respondent no.1 was obtained to that effect.
The learned counsel further pointed out that the respondent
no.1 had applied for sick leave and no communication was
received by the respondent no.1 rejecting such leave until the
impugned order of termination came to be passed. The
learned counsel further pointed out that the petitioner passed
the order of termination without even holding an inquiry
within the Rule and an employer cannot dispense with such
requirement at his own will and such action otherwise has to
be explained. The learned counsel further pointed out that
the petitioner also did not justify such termination while
recording of evidence before the learned Tribunal. The
learned counsel further pointed out that the fact that the
respondent no.1 was sick has been duly established by the
examination of the doctor Oscar Rebello who has
categorically stated the nature of the sickness suffered by the
respondent no.1. The learned counsel further pointed out:16:
that the assumption by the petitioner that leave of the
respondent no.1 has expired on 22.09.2000 is totally absurd
as according to him even thereafter in the proceedings which
were pending before different authorities the petitioner had
accepted the respondent no.1 as their workman in their
employment. The learned counsel further pointed out that it
is now well settled that this Court in a Writ Petition under
Article 227 of the Constitution of India cannot re-appreciate
the evidence on record to come to any contrary finding. The
learned counsel further pointed out that in such
circumstances considering that the learned Tribunal has
appreciated the evidence on record to come to the conclusion
that the respondent no.1 was a workman within the meaning
of the Industrial Disputes Act and was also sick during the
relevant period, these findings of fact arrived at by the
learned Tribunal on the basis of material produced by the
respondent no.1 cannot be interfered with in the present Writ
Petition. The learned counsel further pointed out that the
respondent no.1 was unemployed and as such the Tribunal
was justified to direct reinstatement of the respondent no.1
along with the increments and payment of full back wages
which the respondent would otherwise be entitled. The
learned counsel as such submits that the above petition be:17:
rejected.
9. Before I proceed to examine the rival
contentions, it would be appropriate to note the
observations of the Apex Court in the context as to when
the High Court can interfere in the orders passed by the
learned Tribunal in exercise of its jurisdiction under
Articles 226 and 227 of the Constitution of India. The
Apex Court in the judgment reported in (2012) 5 SCC
443 in the case of Heinz India Private Limited and
another V/s State of Uttar Pradesh and others, has
observed at para 60 thus :
“60. The power of judicial review is
neither unqualified nor unlimited. It has
its own limitations. The scope and
extent of the power that is so very
often invoked has been the subjectmatter
of several judicial
pronouncements within and outside the
country. When one talks of “judicial
review” one is instantly reminded of the
classic and oft-quoted passage from
Council of Civil Service Unions v.
Minister for the Civil Service, where
Lord Diplock summed up the:18:
permissible grounds of judicial review
thus: (AC pp. 410 D, F-H and 411 A-B)
“… Judicial review has I think
developed to a stage today when
without reiterating any analysis of
the steps by which the
development has come about, one
can conveniently classify under
three heads the grounds upon
which administrative action is
subject to control by judicial
review. The first ground I would
call ‘illegality’, the second
‘irrationality’ and the third
‘procedural impropriety’. …
By ‘illegality’ as a ground for
judicial review I mean that the
decision-maker must understand
correctly the law that regulates his
decision-making power and must
give effect to it. Whether he has or
not is par excellence a justiciable
question to be decided, in the:19:
event of dispute, by those
persons, the Judges, by whom the
judicial power of the State is
exercisable.
By ‘irrationality’ I mean what can
by now be succinctly referred to as
‘Wednesbury unreasonableness’. It
applies to a decision which is so
outrageous in its defiance of logic
or of accepted moral standards
that no sensible person who had
applied his mind to the question to
be decided could have arrived at
it. Whether a decision falls within
this category is a question that
Judges by their training and
experience should be well
equipped to answer, or else there
would be something badly wrong
with our judicial system. …
I have described the third head
as ‘procedural impropriety’
rather than failure to observe:20:
basic rules of natural justice or
failure to act with procedural
fairness towards the person who
will be affected by the decision.
This is because susceptibility to
judicial review under this head
covers also failure by an
Administrative Tribunal to
observe procedural rules that
are expressly laid down in the
legislative instrument by which
its jurisdiction is conferred, even
where such failure does not
involve any denial of natural
justice.”
Further in the case of Devinder Singh V/s
Municipal Council, Sanaur, reported in (2011) 6 SCC
584, it has been held at paras 22 and 23 thus :
“22. In the second judgment, Sawarn
Singh v. State of Punjab, this Court
reiterated the limitations of certiorari
jurisdiction indicated in Syed Yakoob v.
K.S. Radhakrishnan and observed:
(Sawarn Singh case, SCC p. 872, para:21:
13)
“13. In regard to a finding of fact
recorded by an inferior tribunal, a writ
of certiorari can be issued only if in
recording such a finding, the tribunal
has acted on evidence which is legally
inadmissible, or has refused to admit
admissible evidence, or if the finding
is not supported by any evidence at
all, because in such cases the error
amounts to an error of law. The writ
jurisdiction extends only to cases
where orders are passed by inferior
courts or tribunals in excess of their
jurisdiction or as a result of their
refusal to exercise jurisdiction vested
in them or they act illegally or
improperly in the exercise of their
jurisdiction causing grave miscarriage
of justice.”
23. In Surya Dev Rai v. Ram Chander Rai
the two-Judge Bench noticed the distinction
between the scope of Articles 226 and 227
of the Constitution and culled out several
propositions including the following: (SCC
p. 695, para 38):22:
“38. (3) Certiorari, under Article
226 of the Constitution, is issued
for correcting gross errors of
jurisdiction i.e. when a subordinate
court is found to have acted (i)
without jurisdiction—by assuming
jurisdiction where there exists
none, or (ii) in excess of its
jurisdiction—by overstepping or
crossing the limits of jurisdiction, or
(iii) acting in flagrant disregard of
law or the rules of procedure or
acting in violation of principles of
natural justice where there is no
procedure specified, and thereby
occasioning failure of justice.”
10. Thus on perusing the said judgments of the
Apex Court, the interference by the High Court in the
order of the learned Tribunal can only be in cases in which
the decision by the learned Tribunal has been arrived at in
gross violation of the legal principle. As far as the factual
aspects are concerned, unless it is pointed out that there
is a patent mistake in admitting evidence illegally or there:23:
is grave error of law to come to the conclusion on the
basis of the fact before the learned Tribunal, the High
Court under Articles 226 and 227 of the Constitution of
India cannot re-appreciate such evidence or come to a
contrary finding which would lead to exceeding its
jurisdiction conferred upon this Court. A Division Bench
of this Court in a judgment reported in 2005(10) LJSOFT
(URC) 61 in the case Thermax Limited & Ors. V/s C.
Gopinath Pillai & Ors has observed at para 9 thus :
“9. Undoubtedly, the Labour Court or
the Industrial Court, Pune, is the final
court of facts in such types of disputes
but if a finding of fact happens to be
perverse or the same is not based on
legal evidence, nothing prevents the
High Court in exercise of the powers
either under Article 226 or 227 of the
Constitution of India from going into
the question of fact decided by the
Labour Court or the Industrial Court.
The law on the point is well settled.
However, before going into such an
exercise it is absolutely necessary for
the writ court to record reasons as to:24:
why it intends to reconsider a finding
of fact. In the absence of any such
defect in the order of the Labour
Court, the writ court is not justified in
entertaining the petitions involving
disputes of facts and finding given
thereon. The impugned order passed
by the learned Single Judge nowhere
discloses any conclusion having been
arrived at that the finding of the
Industrial Court was either perverse or
based on no evidence. The impugned
order apparently discloses that it
proceeded as if the proceedings were
in the nature of appeal. The judgment
rather proceeds to re-assess the entire
evidence as if it is sitting in an appeal.
Considering the same, it cannot be
sustained and is liable to be set aside.
It is also to be noted that when the
claim of the employee to be a
"workman" is disputed, it is necessary
to determine the said issue on the
basis of the conclusive evidence. It is
not sufficient to contend that merely:25:
because the employee had been
performing any managerial or
supervisory duties, ipso facto he would
be a workman. In order to entitle to
claim to be a workman within the
meaning of the said expression, the
person has to perform one or the
other jobs mentioned in the said
provision and the same should be
established by the evidence to be
produced by a person claiming the
same. Only on the analysis of such
evidence, it is to be ascertained
whether the claimant discloses any of
the jobs specified in the said
provisions being carried out by him.”
11. Taking note of the observations of the Apex
Court and this Court what emerges is that the Industrial
Tribunal is the final Court of fact for such determination
and the interference by this Court is only in circumstance
where perversity is established in such findings by the
petitioner. Keeping in mind the ratio laid down by the
Apex Court and this Court, I will now proceed to examine:26:
the findings of the learned Tribunal.
12. The first contention of Mr. Sardessai, learned
Counsel appearing for the Petitioner, is that the nature of the
duties performed by the Respondent are supervisory and, as
such he does not meet the definition of the word 'workman'
under the Industrial Disputes Act. To examine this aspect, it
would be relevant to note the definition of the work
'supervisor' in Black's Law dictionary which reads thus :
"any individual having authority, in
the interest of the employer, to hire
transfer, suspend, lay off, recall,
promote, discharge, assign, reward,
or discipline other employees, or
responsibly to direct them, or to
adjust their grievances, or
effectively to recommend such act,
if in connection with the foregoing
the exercise of such authority is not
of a merely routine or clerical
nature, but requires the use of
independent judgment."
"The Major Law Lexicon" definition of the term is :
"'supervisor' means any individual
having authority, in the interest of:27:
the employer, to hire transfer,
suspend, lay off, recall, promote,
discharge, assign, reward, or
discipline other employees, or
responsibly to direct them, or to
adjust their grievances, or
effectively to recommend such act,
if in connection with the foregoing
the exercise of such authority is not
of a merely routine or clerical
nature, but requires the use of
independent judgment. A
supervisor, as understood in S. 2(s)
really means the person exercising
supervisory works and is required to
control the men and not the
machines. For exercising such
power, it is necessary that the
supervisor himself must have
technical expertise, otherwise he
may not in a position to exercise
proper supervision of the workmen
handling sophisticated plants and
machineries. But if a person is
required to render his technical
knowledge in the matter of
production along with other
workmen as directed by other
superiors then he cannot be said to
be exercising supervisory works and:28:
or administrative works."
Thus, in order to be a supervisor, an individual
has to have authority in the interest of the employer to hire,
transfer and suspend, assign or discipline other employees or
to recommend such action unless the exercise of such
authority is not merely routine or clerical in nature, but
requires the use of independent judgment. In this connection,
the learned Tribunal has examined the nature of the duties
performed by the respondent no.1, inter alia, in different
Departments including the (i) Cash Credit Accounts Section,
(ii) Savings Bank Accounts Section, (iii) Recovery Department
and (iv) Internal Audit. In order to dispute the finding of the
learned Tribunal, Mr. Sardessai, learned Counsel appearing for
the petitioners has pointed out parts of the deposition of the
respondent no.1 to contend that this establishes that the
respondent no.1 is not a workman. Essentially the
statements sought to be relied upon were with regard to the
inability of the respondent no.1 to specify the duties
attributed to different Departments where he was working.
In fact, all these aspects have been exhaustively examined by
the learned Tribunal in the impugned Award and took note of
the fact that it is well settled that a person to be a workman:29:
must not only fall outside exclusion clauses but must
necessarily fall by the nature of his duties in the first limb of
the definition. In this context, the learned Judge has also
taken note of the Judgment of the Division Bench of this
Court reported in 1985(1) CLR 318 in the case of Vinayak
Baburao Shinde vs. S. R. Shinde & Ors., where it has
been held that the word "supervise" means to oversee i.e.
looking after the work done by other persons. It has further
been observed that the essence of supervision consists in
overseeing by one person over the work of others and this
also involves the power of the person overseeing to direct
and control the work done by the person over whom he is
supervising. The learned Tribunal thereafter noted that the
respondent no. 1 was appointed as a clerk and was promoted
as a Junior Officer in the year 1987. The learned Judge also
took note of the deposition of the respondent no.1 wherein he
has stated that the the duties of the Junior Officer were
absolutely clerical in nature such as passing of cheques,
check list and verification of accounts and carrying out all
duties as assigned by the Branch Manager. The learned
Tribunal also minutely examined the deposition of the
respondent no.1 to take note of the different duties that were
being performed by him whilst working. The learned Judge:30:
also examined the cross examination of the respondent no.1
and noted that the respondent had denied that he was
performing any supervisory functions. The learned Tribunal
has also examined the evidence of Aw.3 Avinash Raiturkar,
who was a retired Manager of the same Bank, who had also
stated that the duties of the Junior Officer is to check the
work of the clerical staff and that the duties of the Junior
Officer are assigned by the Manager. The learned Judge also
took into account the evidence of Aw.5 Shri Jose Onefro
Fernandes, who was an Officer working with the Bank till his
retirement and was Director of the Bank. He has also
deposed that the duties of the Junior Officers are merely to
check the transactions relating to the debit and credit of the
customers. The learned Judge also took note of the fact that
the internal audit department where the respondent no.1 was
also associated and found that such work was being
performed under the supervision of the Branch Manager or
the Asst. Manager. The learned Tribunal also noted that any
defects were to be pointed out to the Branch Manager or the
Asst. Branch Manager, who were responsible to rectify the
defects. The learned Tribunal also took note of the fact that
the respondent no.1 had admitted that he had represented
the Bank before the Arbitration Proceedings as per the:31:
directions of the Chief Officer and that the Chief Officer had
given a letter of authority and thereby authorized him to
represent the Bank before the Arbitrator. The learned Judge
also examined the ratio laid down by the Apex Court in the
Judgment reported in AIR 1967 S. C. 428 in the case of
Lloyds Bank vs. Panna Lal Gupta, wherein it is held that
the work that is being done by a Clerk in the audit
department consists of checking of books of accounts and
entries made in them and checking up is primarily a process
of accounting and the use of the word "checking" cannot be
permitted to introduce supervisory in nature. The process of
checking the authority of the person passing the voucher or
to enquire whether the limit of authority has been exceeded
is also no doubt work of checking type but the checking is
purely mechanical and it cannot be said to include any
supervisory functions. The learned Judge, as such, came to
the conclusion that the work in the Bank involves layer upto
layer of checking and the fact that the respondent no.1 was
required to check the debit entries, ledgers, folios, specimen
signatures, cannot be the criteria by holding that he was a
Supervisor.
13. The next aspect examined by the Tribunal is:32:
whether the respondent no.1 occupied a position of command
and direction or had powers to take decision independently
which would bind the Bank and/or whether the duties
performed by the respondent no.1 had an element of
supervision. The learned Tribunal took note of the evidence
of Aw.3 who had indicated that disciplinary action, hiring and
recalling of staff is done by the Head Office and the work to
the staff is assigned by the Branch Manager. At para 45 of
the Judgment, the learned Tribunal also took note of the
claim of the Petitioners with regard to the during claimed to
have been performed by the respondent no. 1. The learned
Tribunal also took note of the deposition on behalf of the
Petitioners of Shri Usgaonkar, who had also admitted that
every staff of the branch is required to report only to the
Branch Manager. He has also admitted in the cross
examination that there are two sets of keys of the safe and
as per the RBI guidelines, one key should be kept with the
Chief Manager and the other should be kept with the Branch
Manager Shri Usgaonkar, further admitted that hiring of
staff, recalling of the staff and taking disciplinary action
against the staff is done by the Head Officer. The learned
Tribunal also took note of the fact that though it was claimed
that the saving department is headed by the Junior Officer,:33:
there was nothing on record to substantiate such claim. The
learned Tribunal also took note of the admission of Rw.1 that
the Branch Manager exercised supervisory powers and has
control over all the employees including the Junior Officer of
the branch. The learned Tribunal, as such, found that the
evidence of Rw. 1 clearly indicated that the supervisory
powers were not exercised by the Junior Officer but are
exercised by the Branch Manager. The learned Tribunal as
such came to the conclusion that the Junior Officer passed
the cheques and performed the duties in a routine manner in
the normal course of business. However, in case of any
irregularity in clearing such cheques, opening bank account
or receiving deposits or cash he has no independent right or
authority to take decision but he has to report about the
irregularity to the Asst. Branch Manager. The Tribunal has
also noted that his statement that the Certificate of balance
is initialed by the Junior Officer and signed by the Assistant
Branch Manager. The learned Tribunal also took note of the
fact that Aw. 5 had stated that there was no manual of the
duties of employees and that there are only guidelines issued
by the Head Office. The guidelines issued by the petitioner
are at exhibit 83. The Tribunal noted that the guidelines is a
list of additional duties and responsibilities of the Officers at:34:
the Head Office. The Petitioners have not produced the
Circular dated 10.10.1985 referred to in the said Guidelines.
The learned Tribunal found that the respondent no. 1 was not
working at the relevant time at the Head Office and it cannot
be said that the circular/guidelines at exhibit 83 were
applicable to the respondent no. 1. The Guidelines
enumerated the responsibilities of Officers dealing with
savings and home savings, safe account which include
obtaining and scrutinizing of the accounts. The Tribunal as
such found that the duties and the responsibilities of the
Officer dealing with cash credit account include, calling for
confirmation of balance in cash credit account for every
quarter and ensure that withdrawals in excess of limits are
not allowed and sending advise if accounts are not operated
in accordance with the limits or check the drawing power
register enumerating the statement and other scrutiny are
necessary to be reported in writing regularly to the Branch
Manager in case of irregularities found in such accounts. The
learned Tribunal as such found that such Circular or
Guidelines do not disclose that the Officer could take any
independent decision or that he had any supervisory control
over the staff. The Tribunal therefore concluded that the
guidelines disclose that the respondent no.1 was not:35:
performing supervisory duties or was empowered to take any
independent decision which could bind the Bank. The learned
Judge took into account the distinction made by the Apex
Court in the Judgment reported in AIR 1964 S.C.C. 1522 in
the case of South Indian Bank vs. A. R. Chacko, wherein
an accountant was held to be a workman and was held that
there is a difference between accountants who are really
officers and those who are senior clerks with some
supervisory duties. The learned Tribunal also took note of the
contention of the claim of the Petitioner that the work
performed by the respondent no.1 in the audit department
and noted that whenever he was carrying out surprise audit
inspections of cash, they were done at the instructions of the
Chief Officer Recovery. The learned Tribunal also noted that
Rw. 1 had not denied the suggestion that the audit report is
signed by the Chief Officer and the Junior Officer initials the
same. The learned Tribunal also took into account the role
played by the respondent no. 1 in Arbitration cases and noted
that RW1 himself had admitted that the Junior Officer cannot
on its own represent the Bank in legal proceedings and that
he can represent the Bank only if he is directed by the
General Secretary. He has also admitted that the respondent
no.1 had acted as per the instructions of the Chief Officer:36:
who in turn was directed by the General Secretary. After
appreciating the evidence on record, the learned Tribunal
came to the conclusion that the respondent no. 1 was neither
working in a Supervisory category nor was he ever assessed
for his supervisory ability as he had no overall control over
any section of the employees working in a particular Section.
Hence, the Tribunal concluded that the respondent no. 1 was
a workman within the provisions of Section 2(s) of the
Industrial Disputes Act, 1947. The learned Tribunal further
found that the duties performed by the respondent no. 1 are
in the realm, of checking duties which are clerical duties and
cannot be acquainted with supervisory duties.
14. In this connection, the Apex Court in the
Judgment reported in AIR 1985 S. C. 985 in the case of
Arkal Govind Raj Rao vs. Ciba Geigy of India Ltd.,
Bombay, has observed at paras 8 and 9 thus :
“8. The Labour Court then took
note of the fact that in 1966
appellant was promoted as
Assistant and that he was
designated as Group Leader. Ex.
16/6 was referred to as specifying
the duties of the Group Leader of
Group II. The Court concluded that:37:
the aforementioned document
would show that the appellant was
a Group Leader and that he
accepted that position by putting
his initials on the document. The
inference drawn by the Court from
this document is that the work of
Group Leader is undoubtedly mainly
supervisory though he is also
required to work-himself. However,
in the view of the Labour Court at
this stage the duty of the appellant
became primarily supervisory;
While it is true that the appellant
was working as Group Leader and,
therefore, over and above his work
he also supervised the work of
persons working in his group, it is
erroneous to draw the inference
that his duties became mainly
supervisory. The definition of the
expression workman hereinbefore
extracted clearly shows that the
person concerned would not cease
to be a workman if he performs
some supervisory duties but he
must be a person who must be
engaged in a supervisory capacity.
Even as a Group Leader of Group
II, the evidence produced would:38:
show that primarily he continued to
work and perform the same duties
which have been found to be
clerical but along with others in the
group he also incidentally looked
after the work of other members of
the group who were only two in
number. It is, therefore, not
possible to concur with the
inference drawn by the Labour
Court contrary to the record that
while functioning as Group Leader
of Group II, even though appellant
was performing his clerical duties
the incidental supervisory duties
performed by him would make the
appellant a person employed in
supervisory capacity. Let it be
recalled that in Group II over and
above the appellant, there were
only two other persons, namely,
Shri Swami and Shri Sawant. The
distinction drawn between the
duties performed by Swami and
Sawant and that of the appellant
was that as Group Leader the
appellant was to ensure that the
work allotted to the Group is
completed within the scheduled
time. In other words, work:39:
distribution among three persons of
a clerical nature would not cease to
be clerical because one of the three
is asked to see that all the three of
them performed the duties
efficiently to complete the task. The
Labour Court completely misled
itself and observed that since then
the duties of the appellant became
supervisory.
9. The Labour Court then
proceeded to examine another
circumstance to determine the
status of the appellant. It was
submitted on behalf of the
employer that the appellant had
also to do the work of preparing
bank reconciliation statements. It
was observed that the reconciliation
of statements cannot be regarded
as skilled or unskilled, manual or
clerical but one requiring
creativeness, imagination and
application of mind and therefore,
anyone doing such work would not
be a workman. This approach
betrays lack of understanding of
what constitutes bank reconciliation
statements. When a party opens an:40:
account, it goes on making credits
and withdrawals. The bank
maintains a recurring account. The
party opening the account for its
continuous watch may open a
corresponding account on its own
books. In order to see that there
are no errors in credits and
withdrawals and the balance is
drawn at regular intervals,
reconciliation of figures in the
accounts of both the parties is
undertaken. This is one of the most
mechanical types of clerical work.
However, the Labour Court fell into
an error when after taking note of
the fact that the appellant was
asked to prepare bank’s
reconciliation statements, looked
into the decision in Kirloskar
Brothers Ltd. v. Labour Court
wherein preparation of budgetary
statements was regarded as work
requiring creativeness, and the
Labour Court after referring to that
judgment of budgetary statement
applied it to the case of a man who
had nothing to do with preparation:41:
of budgetary statements but merely
to do the wholly mechanical work of
bank’s reconciliation statements
and recorded a wholly perverse
conclusion. This is a serious error
apparent on the face of the record
committed by the Labour Court
which has influenced our thinking.”
15. Mr. Sardessai, learned Counsel appearing for the
Petitioners, has enumerated different departments where the
respondent no.1 was rendering services to advance his
contention that the respondent no.1 was conducting
supervisory functions. These functions highlighted by Mr.
Sardessai are essentially with regard to the performance of
surprise inspection of cash, checking if there are any
discrepancies, report recommend corrective actions and the
admission of the respondent no.1 that he observed that there
were several lapses. The learned counsel also pointed out
that in the maintenance of important registers, the
respondent no.1 was carrying out inspections and internal
audits and that he had admitted that in the process of
performing the duties in the internal audit department, he:42:
had entrusted and had opportunity of conducting several
verifications. All these aspects have been taken note of by
the learned Tribunal to come to the conclusion that these
duties were only in the process of checking the accounts
which cannot be considered to be of supervisory in nature
and I find no perversity in these findings of the learned
Tribunal. Mr. Sardessai, learned Counsel appearing for the
Petitioners, has also highlighted different aspects with regard
to the duties performed by the respondent no.1 to advance
his contention that the respondent no.1 had an independent
capacity to take decisions and/or was performing supervisory
functions. All these aspects have also been minutely dealt
with by the learned Tribunal in the impugned award and, as
such, I find that there is no error committed by the learned
tribunal to come to the conclusion that the respondent no. 1
was a 'workman' within the meaning of the Industrial
Disputes Act, 1947.
16. The reliance by Mr. Sardessai, learned Counsel
appearing for the Petitioners, in the case of German
remedies (supra) is erroneous in the facts of the present
case. The facts therein were, inter alia, that the Officer
concerned was authorised to certify temporary advances:43:
made by different workers, authorise and sanction leave
applications of the workers, authorise to issue gate passes to
the workers and giving clearance for the appointments made
to the workers. In the present case, such duties were not
assigned to the respondent no.1 herein. Mr. Sardessai,
learned Counsel has also relied in the judgment of Standard
Chartered Bank where it has been held that the fact that
the employee is not vested with the power to sanction leave
or to initiate disciplinary proceedings is not conclusive to the
question as to whether the work performed by the employee
falls within one of the categories stipulated in Section 2(s) of
the Industrial Disputes Act. The observations therein were
essentially to examine whether the work that was performed
by an employee was managerial work. The work assigned to
the concerned employee therein was to find ways to develop
business of the Bank, finding ways to improve operational
efficiency and controlling costs to manage and augment the
customer base. These are not the functions which were
carried out by the respondent no. 1 herein.
17. No doubt, Mr. Sardessai, learned Counsel
appearing for the Petitioners, is justified to contend that the
Judgment of this Court in the case of Sunita B. Vatsaraj:44:
vs. Karnataka Bank (supra) has been overruled by the
Division Bench in Appeal. But, however, in the said Judgment,
there is an observation that nothing was brought on record to
suggest that this checking was only physical checking report
to the Management. The facts therein further discloses that
the checking involved power to overrule and correct errors
made by the sub-ordinates. The facts therein also showed
that the concerned employee was day to day supervising the
work and task performed by the sub-ordinates. The
employee therein also had powers to overrule and correct the
errors of the sub-ordinate. But, however, in the present case,
the findings of the Tribunal in the impugned award are that
the clerks were directly supervised by the Asst. Manager and
the Branch Manager and that the respondent no.1 neither
allotted the work nor checked the work and corrected, on day
to day basis. In such circumstances, the said Judgment
relied upon by Mr. Sardessai in the case of Karnataka Bank
(supra) passed by the Division Bench of this Court would not
be applicable to the facts of the present case. As pointed out
herein above, the evidence herein would show that in the
present case the findings of the Tribunal are that the work
carried out by the respondent no.1 was at the behest of the
Asst. Manager and the Branch Manager. Considering the well:45:
reasoned findings of the Tribunal and taking note of the ratio
laid down by the Apex Court, as there is no perversity in such
findings of the Tribunal nor it can be said that such findings
have been arrived at by misreading any material piece of
evidence, I find that this Court in exercise of jurisdiction
under Articles 226 and 227 of the Constitution of India,
cannot re-appreciate such findings to come to any contrary
conclusions. Hence, the findings of the Tribunal to the effect
that the respondent no. 1 was a 'workman' within the
meaning of the provisions of the Industrial Dispute Act,
cannot be faulted.
18. Next contention of Mr. Sardessai, learned
counsel appearing for the petitioner is that the respondent
no.1 has feigned that he was sick and had deliberately
avoid from reporting to his duties during the relevant
period. In this connection, the learned Tribunal in the
impugned award has taken note of the fact that the
respondent no.1 was on casual leave on 29.05.2000 and
30.05.2000 was a holiday. It is also not in dispute that by
an application dated 02.06.2000 the respondent no.1 had
applied for sick leave w.e.f. 31.05.2000 on the ground
that he was suffering from viral hepatitis. A medical
certificate dated 31.05.2000 issued by Dr. Oscar Rebello
and countersigned by the Medical Superintendent of:46:
G.M.C., was also forwarded along with the application.
Exhibit 29 Colly before the Trial Court is a letter dated
31.05.2000 as well as the transfer order produced by the
respondent no.1 which was stated that it was not served
prior to 07.06.2000. RW1 had also admitted that there
was no endorsement that it was served on the respondent
no.1 on the said date. The learned Tribunal has also
noted that the respondent no.1 had deposed that on
02.08.2000 or thereabout he received a letter dated
21.07.2000 asking him to report to the medical board on
25.07.2000. The letter was duly exhibited as Exhibit 89.
The respondent no.1 also stated that he received the said
letter only after 25.07.2000. The learned Tribunal came to
the conclusion that the said letter was received only after
the date fixed for such examination. The learned Tribunal
also noted that the respondent no.1 had challenged his
transfer order before the Registrar of Co-operative
Society. The record further reveals that the statement
was made by the Advocate appearing for the petitioner
before this Court asking the respondent no.1 to make a
representation to the Advocate with regard to his transfer
order. The learned Tribunal examined the evidence on
record. The learned Tribunal also noted that the
respondent no.1 had produced a letter dated 29.12.2000
at Exhibit 41 whereby the respondent no.1 was informed:47:
that he was on sick leave up to 22.09.2000 and since he
had remained absent beyond the period of leave he
ceased to be an employee from 23.09.2000 as per the
service condition in force. To substantiate the said
contention, the learned Tribunal has also noted that the
respondent no.1 had examined AW1 Advocate Rivonkar to
inter-alia confirm that he was asked to make a
representation during the course of the hearing. The
respondent no.1 also examined Advocate Mr. Agnelo Diniz
who was appearing on behalf of the respondent no.1 in
L.P.A. No. 18/2000. The learned Tribunal also noted that
as on 30.06.1999 the respondent no.1 had 225 days of
sick leave at his credit and further accumulated sick leave
for the period ending 30.06.2000. The respondent no.1
has also stated that such leave would expired only on
10.01.2001. Apart from that, the respondent no.1 had
also 240 days of privilege leave to his credit as on
30.06.1999 which he has not availed. The fact that the
respondent no.1 had 215 days sick leave in his credit is
admitted by RW1. The learned Tribunal relied upon a
chart to examine whether such leave was available to the
credit of the respondent no.1. The learned Tribunal also
noted that the letter at Exhibit 91 was not served on the
respondent no.1. The learned Tribunal also noted that
though the respondent no.1 had not applied for sick leave:48:
with full pay, twice the amount of leave was debited from
his sick leave account and this was not even informed to
the respondent no.1. The learned Tribunal as such found
that the action by the petitioner without the respondent
no.1 applying for such exercise of debiting double the
amount of sick leave from the sick leave account of the
respondent no.1 is not justified. AW4 Dr. Oscar Rebello
has deposed that on the date of issuing the certificate at
Exhibit 27, he was clinically satisfied that the patient was
suffering from viral hepatitis. The learned Tribunal
accepted the deposition of AW4. The learned Tribunal as
such came to the conclusion that the evidence of AW4 Dr.
Rebello indicates that the respondent no.1 was sick and
he was not merely feigning sickness to avoid reporting to
work. The said findings of fact arrived at by the learned
Tribunal on the basis of appreciating the evidence on
record cannot be re-appreciated by this Court in Writ
Petition. The petitioner have not brought any evidence or
material to dispute the averments in the deposition of
such witnesses. Hence, the contention of Mr. Sardessai,
that the respondent no.1 had feigned that he was sick
cannot be accepted. It is also to be noted that the
learned Tribunal has taken note of the fact that the sick
leave of the respondent no.1 would expire only on
10.01.2001. The disputed termination was ordered in:49:
December, 2000 w.e.f. September, 2000. Considering
that the respondent no.1 had accumulated medical leave
to his credit besides privilege leave, it was not open to the
petitioner to come to the conclusion that the respondent
no.1 had ceased to be their employee.
19. Next contention would be whether the grounds
for termination of the services of the respondent no.1 are
justified. The petitioner are relying upon Clause III(d) of
the settlement dated 06.05.1997 in support of their
contention that the petitioner is entitled to terminate the
services of the respondent no.1. The said Clause reads
thus :
“(d) An employee remaining absent on
duty beyond the period of leave already
sanctioned for him, shall cease to be an
employee of the bank unless he returns
within eight days after the expiry of such
leave and furnishes good cause to the
satisfaction of the manager/chairman of
his inability to report for duty on the due
date”. :50:
20. On going through the said clause in cases in
which the employee has remained absent from duty
beyond sanctioned period of leave he ceased to be an
employee of the bank unless he returns within eight days
after the expiry of such leave and furnishes good cause to
the satisfaction of the manager/chairman of his inability
to report for duty on the due date. In the present case,
the petitioner has not brought anything on record to show
up to when the leave of the respondent no.1 was
sanctioned. The learned Tribunal has taken note of the
fact that the respondent no.1 was sick and that the
respondent no.1 had sick leave to his credit during the
said relevant period. In order to imply that the employee
has ceased or abandoned his services, there must be a
total or complete giving up of duty so as to indicate an
intention not to renounce the services. Thus, the question
of abandoning the services is also a question of an
intention of the parties and normally such an intention
cannot be attributed to an employee without adequate
evidence in that behalf. This is a question of fact to be
determined in the light of surrounding circumstances of
each case. Only because action on the part of the
employee to avail of leave without any prior sanction
thereof or overstay despite of expiry of the period of
leave, it cannot be assumed that he is ceased to be an
employee of the bank. Admittedly, there is no legislation
in the present case which governs the right of the parties
to draw such inference. In the present case, from
September, 2000 to December, 2000 there were different
proceedings with regard to the transfer of the respondent
no.1 which were being examined by the Co-Operative
Tribunal as well as by this Court. The petitioner never
raised the contention that the respondent no.1 had
ceased to be their employee. The fact that the
respondent no.1 continued to be in services of the
petitioner was not disputed by the petitioner in any of
such proceedings. All these circumstances and taking
note that the respondent no.1 had accumulated sick leave
and privilege leave, the petitioner could not arbitrarily
debit double of the medical leave to come to the
conclusion that the respondent no.1 has failed to remain
present after the sanctioned leave. The petitioner has
acted arbitrarily in taking the action nor issued any show
cause notice to the respondent no.1 with that regard. The
question of assuming that the respondent no.1 had
ceased to be an employee automatically is totally uncalled
for as the petitioner ought to have sent a notice to the
respondent no.1 and conducted proper inquiry before
taking any such action. The learned Tribunal has
examined all these aspects and has come to the
conclusion that the petitioner is not at all justified to
terminate the services of the respondent no.1 for the
reasons stated in the letter of termination. It is also to be
noted that the learned Tribunal took note of the fact that
in the present case there was no allegation that the
respondent no.1 was habitual, unauthorised and
unjustifiably absent without applying for leave. The
learned Tribunal also noted that though no inquiry was
held, it was open to the petitioner to justify such
discharge which the petitioner failed to bring any evidence
with that regard. The learned Tribunal further noted that
no inquiry was held before issuing the order of
termination nor any request was made by the petitioner
to give them an opportunity to adduce any evidence for
justifying the action. The learned Tribunal further noted
that the evidence on record clearly indicate that the
respondent no.1 was sick and had applied for sick leave
w.e.f. 31.05.2000. No decision was taken on such
application and the transfer order was served during the
pendency of such application. The learned Tribunal
concluded at para 127 of the impugned award that the
impugned order passed by the petitioner was arbitrary,
illegal and totally in beach of the principles of natural
justice, equity and fair play. These findings which have
been arrived at by the learned Tribunal on the basis of
material on record cannot be said to be perverse and as
such I find no reason to interfere in the findings of the
learned Tribunal and consequently, the learned Tribunal
was justified to pass the impugned award by coming to
the conclusion that the termination of the services of the
respondent no.1 are unsustainable in law.
21. The contention of Mr. Sardessai, learned
counsel appearing for the petitioner that merely
examining the doctor does not lead to the discharge of
the burden to prove that the respondent no.1 was sick
during the relevant period cannot be accepted.
Admittedly, the petitioner have not led any evidence or
produced any material to rebut the deposition of the
doctor examined by the respondent no.1. For the
foregoing reasons as such the action of the petitioner in
terminating the services of the respondent no.1 on the
ground that he had ceased to be an employee cannot be
sustained and deserves to be quashed and set aside.
22. The only aspect remains to be examined is
whether the learned Tribunal was justified to grant full
back wages while directing the reinstatement of the
respondent no.1. In the present case, record reveals that
the respondent no.1 was being transferred from Panaji to:54:
Vasco and this action was not accepted by the respondent
no.1 on which ground he initiated proceedings to
challenge such transfer order before the Co-operative
Tribunal. The challenge by the respondent no.1 did not
find favour by the authorities below nor by the learned
Single Judge of this Court. When the matter was pending
in Letters Patent Appeal before the learned Division
Bench, the respondent no.1 was served with subject
termination order. The record clearly reveals that the
respondent no.1 did not report to his new assignment
despite of such transfer order. No doubt, the action of the
petitioner in terminating the services of the respondent
no.1 on the ground that he has ceased to be an employee
of the bank has been quashed and set aside and found
unsustainable in the impugned award passed by the
learned Tribunal. Even during the pendency of the
proceedings challenging the transfer, the record do not
show that any attempt was made by the respondent no.1
to report to his new assignment at Vasco. Apart from
that, though the notice by the petitioner to subject
himself for medical examination before the medical board
was received after the date fixed for such examination,
the respondent no.1 did not take steps to intimate the
petitioner the reason for his inability to report to the
medical board. Normally, when the termination is found:55:
to be unjust, unfair and illegal and opposed to law the
Court has been awarding reinstatement along with back
wages. Awarding back wages in cases in which the
termination is found to be illegal becomes a very key
issue to be examined by the Court. There is an element
of discretion in granting back wages which the Court has
to exercise keeping in view the facts and circumstances
not only of the workman but also of the management.
The question as to whether the workman was or was not
employed is a relevant consideration while examining the
amount of back wages to be awarded. The Court cannot
be oblivious of the fact that the workman whose services
have been terminated wrongfully, has to fight not only for
his survival by getting such odd jobs as he can but has
also to fight a litigation to get himself reinstated in
services. In such circumstances, the Court would have to
examine the overall facts and circumstances of the case
to arrive at the amount to be paid as back wages. Before
exercising its judicial discretion, the Court has to keep in
view all the relevant factors including the nature of
employment, length of services, the ground on which the
termination has been set aside and the delay in raising
the industrial dispute before granting a relief in an
industrial dispute. Considering all the aforesaid factors
and taking note of the conduct of the respondent no.1 as:56:
referred to herein above, I will examine whether the
Tribunal was justified to award full back wages to the
respondent no.1.
23. The Apex Court in the judgment reported in
(2012) 3 SCC 574 in the case of Vismay Digambar
Thakare V/s Ramchandra Samaj Sewa Samiti and
others has observed at paras 3 and 4 thus :
“3. Only to recapitulate the line of
arguments advanced before us we
may mention that the learned counsel
for the appellant had placed reliance
upon U.P. State Brassware Corpn. Ltd.
v. Uday Narain Pandey, Reetu Marbles
v. Prabhakant Shukla and Metropolitan
Transport Corporation v. V. Venkatesan
to contend that back wages could be
awarded to the appellant even in the
absence of a specific assertion by the
appellant to the effect that he was not
gainfully employed during the period
he remained out of service. It was
argued by the learned counsel for the
appellant on the strength of the above:57:
decisions that back wages could range
between 25% to 60%.
4. On behalf of the respondent
Institution, reliance was placed upon
Kendriya Vidyalaya Sangathan vs. S.C.
Sharma, in an attempt to demonstrate
that unless there was a specific
assertion that the appellant was not
gainfully employed during the period
he remained out of service, no back
wages could be awarded in his favour.”
24. In another judgment of the Apex Court
reported in CDJ 2014 SC 388 in the case of Bhuvnesh
Kumar Dwivedi V/s M/s. Hindalco Industries Ltd.,
has observed at para 31 thus :
31. Further, in General Manager, Haryana
Roadways v. Rudhan Singh [(2005)5 SCC
591], the three Judge Bench of this
Court considered the question whether
back wages should be awarded to the
workman in each and every case of
illegal retrenchment. The relevant:58:
paragraph reads as under:
“There is no rule of thumb that in
every case where the Industrial
Tribunal gives a finding that the
termination of service was in
violation of Section 25-F of the Act,
entire back wages should be
awarded. A host of factors like the
manner and method of selection and
appointment i.e. whether after
proper advertisement of the vacancy
or inviting applications from the
employment exchange, nature of
appointment, namely, whether ad
hoc, short term, daily wage,
temporary or permanent in character,
any special qualification required for
the job and the like should be
weighed and balanced in taking a
decision regarding award of back
wages. One of the important factors,
which has to be taken into
consideration, is the length of:59:
service, which the workman had
rendered with the employer. If the
workman has rendered a
considerable period of service and his
services are wrongfully terminated,
he may be awarded full or partial
back wages keeping in view the fact
that at his age and the qualification
possessed by him he may not be in a
position to get another employment.
However, where the total length of
service rendered by a workman is
very small, the award of back wages
for the complete period i.e. from the
date of termination till the date of
the award, which our experience
shows is often quite large, would be
wholly inappropriate.
Another important factor, which
requires to be taken into
consideration is the nature of
employment. A regular service of
permanent character cannot be:60:
compared to short or intermittent
daily- wage employment though it
may be for 240 days in a calendar
year.”
25. Keeping in mind the ratio laid down by the
Apex Court in granting back wages and considering the
facts and circumstances of the case as referred to herein
above including the conduct of the respondent no.1 and
the petitioner payment of 75% of the back wages would
be justified to meet the ends of justice.
26. For the reasons stated herein above, subject to
the modification, to the effect that the petitioner is liable
to pay 75% of the back wages instead of the full back
wages awarded in the impugned award, the impugned
award dated 30.08.2003 passed by the learned Tribunal
stands confirmed. Rule stands disposed of in the above
terms with no orders as to costs.
27. At this stage, Mr. Palekar, learned counsel
appearing for the petitioner seeks stay of the operation of
the above judgment. It is not in dispute that there was a
stay operating during the pendency of the above Writ
Petition. Mr. Menezes, learned counsel appearing for the:61:
respondent no.1 vehemently objected to the said request.
28. In the facts and circumstances of the case, the
operation of the above judgment is stayed for a period of
eight weeks subject to the interim order passed by this
Court during the pendency of the above petition.
F. M. REIS, J
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