Indian Bank v. Smt.S.Maheswari2.The Presiding Officer, Industrial Tribunal, Madras

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.04.2007CORAMTHE HONOURABLE MR.JUSTICE DHARMARAO ELIPEandTHE HONOURABLE MR.JUSTICE S.PALANIVELUWrit Appeal No.2160 of 2000Indian Bank,Rep. by its Assistant General Manager,Personnel Department,Head Office,No.31,Rajaji Salai,Chennai -1. ... Appellant Versus1.Smt.S.Maheswari2.The Presiding Officer, Industrial Tribunal, Madras ... Respondents Writ Appeal filed under clause 15 of the Letters Patent against theorder in W.M.P.No.22602/2000 in W.P.No.16490 of 1997 dated 13.10.2000 thisWrit Petition presented to this Court under Article 226 of theConstitution of India to issue a Writ of Certiorari calling for therecords connected with ID105/92 on the file of the 2nd respondent andquash the award dated 24.04.97 made therein and communicated to thepetitioner Bank by order dated 07.08.97 to the Government of IndiaMinistry of Labour received to the petitioner on 18.09.1997.For Appellant : Mr.V.T.Gopalan Additional Solicitor General for M/s.Ramasubramaniam Associate For Respondents : Mr.D.Hariparanthaman https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTS.PALANIVELU, J. This appeal has been directed against the Order of the learnedSingle Judge passed in W.M.P.No.22602/2000 in W.P.No.16490 of 1997 dated13.10.2000, directing the appellant Bank to pay the respondent/employeeher last drawn wage of Rs.3,000/- per month from April,1999 toOctober,2000, within a period of four weeks and continue to pay the samelast drawn wages every month till the disposal of the Writ Petition. 2. The facts succinctly narrated as follows:- The first respondent was employed as clerk cum shroff-typist in theappellant Bank in the Kumarapalayam Branch. She was, on her own request,transferred to the Zonal Office, Coimbatore. She joined duty on08.12.1989 and indicated that she was availing one week joining time andthen she did not report for duty from 15.12.1989 onwards. Bycommunication dated 30.12.1989, she was called upon to report for duty andthe letter was sent to the address given by her to the Bank. As she didnot report for work on 15.12.1989 and after awaiting for a few days, on30.12.1989, the Bank sent a letter to the First respondent to the addressgiven by her asking her to report for duty immediately. While theemployee acknowledged the receipt of the letter dated 30.12.1989, thepetitioner received the letter dated Nil on 03.01.1990 stating that shewas suffering from pain in the Vertebral bone and requested for leavewithout giving any specific time duration. The bank informed her byletter dated 03.01.1990 to apply for the leave in the prescribed formatwith medical certificate. This letter was sent to the employee to theaddress given by her by the bank. No response was forthcoming from theemployee and the Bank had no knowledge whatever about her whereabouts andfor the first time after about one year she wrote to the Bank by herletter dated 26.12.1990 giving her address at Bangalore but withoutenclosing any medical certificate for alleged illness. Nothing wasthereafter heard from the employee and almost one year later, the Bankreceived a letter dated 24.01.1991 that as per Doctor's advice she muststay at Bangalore. In the meanwhile since nothing had been heard fromher, the Bank had issued letter dated 19.03.1990 sent to her last knownaddress as available with the bank informing her that as a result ofclause 17(a) of the fifth Bipartite Settlement she had terminated herservices with the Bank herself.3. The net result was that from 09.12.1989 she was continuouslyabsent from duty. Eventually since the petitioner was absentcontinuously, the Bank invoked clause 17(a) of the Bipartite Settlementdated 10.04.1989 and informed the employee by letter dated 19.03.1990that in terms of the said settlement she had herself voluntarilyterminated her services on her own volition her employment with the Bankwith effect from 17.04.1990 (i.e.) from the date of expiry of 30 days in https://hcservices.ecourts.gov.in/hcservices/ terms of clause 17(a) of the said Bipartite Settlement. Even this lettersent to her was not served on her. The termination of services wasreferred as I.D.No.105/1992 before the second respondent. After elaboratetrial, the second respondent held that the Bank had rightly come to theconclusion that because of the long absence of the employee without anyintimation, she was deemed to have voluntarily retired from the services.The Industrial Tribunal expressed its helplessness to interfere in thematter because this was not a case of punishment for misconduct, but acase of relinquishment of services by the employee by her own action. Thelearned Judge found that the employee had shown supine indifference ininforming the Bank of her absence for a period of over one year.4. The Second respondent Tribunal on 24.04.1997 passed an awarddirecting the reinstatement of the first respondent from the date ofaward in her old seniority as on 08.12.1989 without continuity ofservice, back wages and other benefits, however with no costs. Thesecond respondent Management has carried the matter W.P.No.16490 of 1997in praying to issue a Writ of certiorari and call for records in the abovesaid I.D. and quash the award dated 24.04.1997 made therein andcommunicated to the petitioner by an order dated 07.08.1997 of theGovernment of India, Ministry of Labour received by the petitioner on18.09.1997.5. While the matter was pending before this Court, the employeefiled W.M.P.No.17487 of 1998 to vacate the interim stay which was alreadygranted in the writ petition and W.M.P.No.17488 of 1998 for a directionunder Section 17-B of the Industrial disputes Act. After hearing both theparties, the learned Single Judge made the interim stay absolute subjectto complying with the following directions:i) The Petitioner/Management is directed to pay a sum ofRs.45,000/- within a period of two weeks from the date ofreceipt of the copy of this order.ii) In addition to this, Management is directed to pay lastdrawn wages i.e. Rs.3,000/- per month for February and March,1999 and the same has to be paid before 15.03.1999.In the said order after considering the circumstances, the registry of theHigh court was also directed for posting the matter for final hearing on22.03.1999, and that if the writ petition was not listed for finalhearing, the employee may move the Court for appropriate directions.6. The learned Single Judge by means of an order dated 13.10.2000 inW.M.P.No.22602 of 2000, directed the Appellant Bank to pay the wagesunder Section 17(B) of the Act as mentioned above and continue to pay thesame last drawn wages every month till the disposal of the writ petitionand that it is open to the writ petitioner(Management) to takeappropriate steps for posting writ petition for final hearing as directed https://hcservices.ecourts.gov.in/hcservices/ earlier. But none of the parties appears to have moved the Court forearly disposal of the matter.7. It is very much stated by the learned counsel for the Managementthat as it transpired from the conduct of the employee that she had nointention to join the duty and only on the ground of sympathy theIndustrial Tribunal directed her reinstatement. Section 17-B of theIndustrial disputes Act reads as follows:-17B. Payment of full wages to Workman pending proceedings inhigher Courts. Where in any case, a Labour Court, Tribunalor National Tribunal by its award directs reinstatement ofany workman and the employer prefers any proceedingsagainst such award in a High court or the Supreme Court,the employer shall be liable to pay such workman, duringthe period of pendency of such proceedings in the HighCourt or the Supreme Court, full wages last drawn by him,inclusive of any maintenance allowance admissible to himunder any rule if the workman and not been employed in anyestablishment during such period and an affidavit by suchworkman had been filed to that effect in such Court:Provided that where it is proved to the satisfaction of theHigh Court or the Supreme Court that such workman had beenemployed and had been receiving adequate remuneration duringany such period of part thereof, the Court shall order thatno wages shall be payable under this section for such periodof part, as the case may be.8. Passing of an order favourably to an employee under section 17-B,would follow filing of an affidavit by the employee stating that she hadnot been employed in any establishment during such period. In thismatter, a separate affidavit was not filed by the employee. However inthe counter affidavit filed by the employee for the writ petition filed bythe Management, it has been affirmed she was not employed and despite herbest efforts she was unable to get alternative employment and that shewas suffering economic hardship. Further in the affidavit accompanyingW.M.P.No.22602 of 2000 it is mentioned that she was not paid wages underSection 17-B of the Act, from March,1999 onwards, thus she was sufferingfrom non-employment.9. In VIVEKANAND SETHI -Vs- CHAIRMAN, J & K BANK LTD., AND OTHERS(2005 (5) Supreme Court Cases Page 337), the Supreme Court has held thatSection 17-B of the Industrial Disputes Act cannot be applied in view ofthe fact that the workman did not file an affidavit before the Tribunalin support of his contentions and as required under law. However in thiscase the employee has mentioned about her non-employment during relevantperiod before the learned Single Judge. https://hcservices.ecourts.gov.in/hcservices/

10. Adverting to the grounds raised by the appellant Management,there is no mention about the alternative employment, if any, undertakenby the employee.11. It is statutory obligation on the part of the Management to payback wages as contemplated under Section 17-B of the Act and there is noground to reject the claim of the employee. Considering all thesecircumstances in this matter, the order passed by the learned Single Judgeis sustainable and no interference is warranted which deserves to beconfirmed. 12. In fine, this writ appeal is dismissed. The order passed by thelearned Single Judge in Writ Miscellaneous Petition No.22602 of 2000 inWrit Petition No.16490 of 1997 dated 13.10.2000 is confirmed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrrgTo 1.Indian Bank, Personnel Department, Head Office, No.31,Rajaji Salai, Chennai -1. 2.The Presiding Officer, Industrial Tribunal, Madras 1 cc To M/s.Ramasubramanian Associates, Advocate, SR.29558. W.A.No.2160 of 2002 MBS(CO)RVL 15.05.2007