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CASE NO.:

Appeal (civil) 4263 of 1999

PETITIONER:

SYNDICATE BANK

RESPONDENT:

GENERAL SECRETARY SYNDICATE BANK STAFF ASSOCIATION & ANR.

DATE OF JUDGMENT: 25/04/2000

BENCH:

S. SAGHIR AHMAD & D.P. WADHWA

JUDGMENT:

JUDGMENT

2000 (3) SCR 285

The Judgment of the Court was delivered by

D.P. WADHWA, J. Appellant Bank was granted leave to appeal under Article

136 of the Constitution against judgment dated September 11, 1998 of the

Division Bench of the Karnataka High Court in writ appeal upholding the

order of the learned single Judge dismissing the writ petition. In the writ

petition the Bank had challenged the Award of the Central Government

Industrial Tribunal 'Tribunal' for short) dated September 26, 1994. By the

Award the Tribunal had directed the Bank to reinstate D.K. Dayananda, a

clerk working in the Cottonpet Branch of the Bank. This is what the

Tribunal directed by the Aiward :

"The order of II party (Bank) as per Ex. M. 16 is set aside. The II party

(Bank) is directed to reinstate the I party (Dayananda) forthwith with

continuity of service. No back wages. Calculated upto the date of

reinstatement, the I party (Dayananda) is not entitled to earn increments

for the period during which he had not worked. Reference accepted in part

accordingly."

Cause of Dayananda, the workman was taken by the first respondent. The

Award arose out of following question, which was referred to the Tribunal

for adjudication :

"Whether the action of the management of Syndicate Bank in terminating the

services of Sri D.K. Dayananda, Clerk Cottonpet Branch of Syndicate is

justified? If not, to what relief the workman is entitled to?"

We may now narrate the circumstances which led the Central Govern-ment to

make the reference of the industrial dispute aforesaid.

In 1975 Dayananda was appointed as Clerk-cum-Typist on probation in the

Bank. Subsequently he was confirmed. In November, 1983 he was transferred

to Cottonpet Branch of the Bank where he was to joint his duty on or before

April 3, 1984. He was relieved from the Branch where he was working, on

March 31, 1984 on his transfer to Cottonpet Branch. From April 1, 1984 to

December, 1985 out of 628 working days Dayananda worked only for 46 days.

Dayananda did not report for duty on April 3, 1984. On June 4, 1984 Bank

sent him a registered notice advising him to report for duty within three

days and also requiring him to submit his explanation for his unauthor-ised

absence. Dayananda sent a leave letter requesting to treat his absence as

leave on health grounds and he assured he would report for duty on July 11,

1984. He did not do so. On July 9, 1984 Dayananda sent his resignation from

the Bank. His resignation was accepted on August 27, 1984. Subsequently

Dayananda withdrew his resignation and requested the Bank to allow him to

continue in the service on humanitarian grounds. This was accepted by the

Bank by letter dated December 3, 1984 subject to certain conditions with

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which presently we are not concerned. Dayananda then joined the Cottonpet

Branch of the Bank. He attended duty up to December 22, 1984 and thereafter

he absented. Afterwards he applied for leave from December 23, 1984 to

January 5, 1985. Bank sent Dayananda a notice to attend his duty. In reply

he requested for grant of further leave. Dayananda attended duty from April

1, 1985 to April 6, 1985 and then again absented himself. He applied for

leave up to May 27, 1985. The leave was not sanctioned by the Bank and he

was communicated of the decision. Still Dayananda did not report for duty.

On May 16, 1985 Bank sent a notice to Dayananda about his unauthorised

absence. On November 19, 1985 the Bank invoked Clause 16 of the IV

Bipartite Settlement between the Management of the Bank and the employees.

Now the Bank called upon Dayananda to show cause for his continued absence

and to report back for work by December 19, 1985 failing which he would be

deemed to have been voluntarily retired from the services of the Bank for

his continued absence from April 8, 1985. This notice was sent by

registered post to Dayananda but it was returned with the report of the

postal authority that he refused to receive the same. This Clause 16 of the

Bipartite Settlement we reproduce:

"Where an employee has not submitted any application for leave and absents

himself from work for a period of 90 or more consecutive days without or

beyond any leave to his credit or absents himself for 90 or more

consecutive days beyond the period of leave originally sanctioned or

subsequently extended or where there is satisfactory evidence that he has

taken up employment in India or the management is satisfied that he has no

present intention of joining duties, the management may at any time

thereafter give a notice to the employ-ee' s last known address calling

upon the employee to report for duty within 30 days of the notice, stating

inter alia, the grounds for the management coming to the conclusion that

the employee has no intention of joining duties and furnishing necessary

evidence, where available. Unless the employee reports for duty within 30

days or unless he gives an explanation for his absence satisfying the

manage-ment that he has not taken up another employment or avocation and

that he has no intention of not joining duties, the employee will be deemed

to have voluntarily retired from the Bank's service on the expiry of the

said notice. In the event of the employee submitting a satisfactory reply,

he shall be permitted to report for duty thereafter within 30 days from the

date of the expiry of the aforesaid notice without prejudice to the Bank's

right to take any action under the law or rules of service".

By order dated December 19, 1985 by virtue of Clause 16 of the Bipartite

Settlement as aforesaid the Bank treated Dayananda as having voluntarily

abandoned his services. This order of the Bank was similarly sent to

Dayananda under registered cover but was returned with the endorsement of

the postal authority "not found during delivery time". Matter rested at

that for three years. In September, 1988 Dayananda gave representation to

the Bank for joining duty. He was told that he had abandoned his services

with effect from April 8, 1985 and there was no question of his now joining

the duty. Industrial dispute was raised by the first respondent which led

the Central Government to make the reference to the Tribunal for

adjudication.

Both the parties filed their respective statements of claims before the

Tribunal. While Bank examined its Manager as its witness, Dayananda

appeared for himself. During the course of evidence of the Manager of the

Bank relevant registered covers and the notices sent to Dayananda were

brought on record. In his statement Dayananda, however, said that he did

not receive the first notice which was returned with the endorsement

"refused". It is not disputed that on both the registered covers correct

address of Dayananda was given. However, Tribunal was of the view that

since the Bank did not examine the postman that Dayananda in fact refused

to receive the notice, it could not be said that there was service of

notice to Dayananda. From this Tribunal was of the view that the Bank could

not under these circumstances invoke the provisions of Clause 16 of the

Bipartite Settlement and on that score along reinstatement of Dayananda had

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to be ordered. Then relying on a decision of this Court in D.K. Yadav v.

J.M.A. Industries Ltd., [1993] 3 SCC 259 the Tribunal took the view that

since no inquiry was held by the Bank before terminating the services of

Dayananda the action of the Bank was illegal. By this Award Tribunal though

directed reinstatement of Dayananda with continuity in service, it declined

to grant him further relief like back wages. Why the Tribunal did so can

gather from paras 13 and 14 of the Award, which we reproduce :

"13. The Ld. Counsel for the I party (Dayananda) stressed that 1 party

(Dayananda) is entitled to back wages. Once the I party submitted his

resignation which was accepted by the II party (Bank). Resignation letter

Ex. M.4 shows that he wanted to take up self employment and start

departmental stores. In view of the representation made by the I party, the

II party recalled him to duty on humanitarian grounds. It is clear

from the material on record that the I party has worked only for 46 days

from 1.4.84 to 19.12.85. He was continuously absent from 8.4.85 without

obtaining leave, though his leave was refused. This notice Ex. M.10

intimating the I party that his leave was rejected has been served on the I

party. The I party stated that he met with an accident and he was

continuously ill. He has not placed any convinc-ing material to prove this.

14. The Nationalised Banks have been working under loss. The unsatisfactory

conduct of I party cannot lose sight off. Against the background of Ex. M.4

it is highly probable that I party workman was not without any employment

all these days. If the first party is granted back wages, in my opinion, it

will amount to repairing penurious Peter to pay prosperous Paul."

Now the Bank was aggrieved. It filed a writ petition under Article 226 of

the Constitution in the High Court of Karnataka which, as noted above, was

dismissed by the learned single Judge by order dated June 25, 1998. Learned

single Judge observed it was not in dispute that the worker had absented

and within a span of 620 days he had worked only for 46 days and further

the worker had not been able to establish that he had any justifiable cause

for his unauthorised absence. Dayananda had not even pleaded that he had

sought any leave for his absence. Also relying on the decision of this

Court in D.K. Yadav's case learned single Judge held that since no inquiry

was held before terminating the services of the workman Award of the

Tribunal could not be interfered. Learned single Judge deprived the workman

of continuity of service, which had been granted by the Tribunal. What

weight learned single Judge can be seen from paras 5 and 6 of his judgment,

which we quote :

"5. The question looms large in this case is that the worker did not attend

the office. But it was incumbent on the Management in such cases to have

issued a notice to the worker and conducted an enquiry. Merely on the

assumption that the notice was refused by the worker, they cannot forgo the

requirement of the enquiry, as held in the decision referred to supra.

Likewise, at the same time, one cannot forget that there are certain

circumstances which indicate that the worker has indicated that he was not

interested in the job. The application he submitted for availing of loan is

one such circumstance. If, as a matter of fact, he had applied for loan and

that was granted, it means that the worker had impliedly expressed his

intention not to continue his job. One does not know what exactly happened

to his application and whether his loan was granted to start a Departmental

Store. But we find that thereafter he tendered his resignation which was

allowed to be withdrawn conditionally. That means, the employer has tacitly

condoned the absence of the worker. This is also circumstance to be kept in

while examining the scope of the plea of unauthorised absence. All these

facts should have been brought out in evidence by conforming the witness by

the employer either before the Tribunal or at the domestic enquiry. In the

absence of such materials one cannot infer that there was an intention

express or implied expressed by the employee to abandon the employment. In

these circumstances, the Tribunal was justified in holding that the

termination of services is not justified.

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6. This takes us to the question as to what should be the relief to be

granted. The worker was awarded the relief of reinstatement besides

continuous service. Certainly this part of the award call for modifi-

cation. If the worker is to be reinstated with continuous service,

practicality he loses nothing. Back-wages cannot be awarded, as there is

some evidence that he would have been otherwise employed. It is a case

where the reinstatement should be ordered without back-wages. There is no

gain saying that the absence was unauthorised. Taking into account all the

circumstances, I feel the proper order would be to direct the Management to

reinstate the worker. The worker will not be entitled to any wages for the

period from the last date of absence i.e., from 3.4.1984 till the date of

the award. Besides he will not be entitled to continuity of service for the

period from 1.4.1984 till the date of award of the Industrial Tribunal.

While fixing the wages on reinstatement he will not be entitled to count

any increments or wages earned for the period from 1.4. 1984 till the date

of the award, i.e., 26.9.1994. He will earn the increment only from

26.9.1994 the previous increment being awarded to him on or before

1.4.1984." Learned single Judge noticed that Dayananda was being paid wages

from September 26, 1994 under Section 17-B of the Industrial Dispute Act,

1947 and that that amount may be set off against the wages payable to him

as if he was reinstated on September 26, 1994. To this extent the Award of

the Tribunal was modified.

Still dissatisfied the Bank went in appeal before the Division Bench of the

High Court. The Division Bench did not go into the merits of the case and

just by referring to the judgment of the learned single Judge dismissed the

appeal. That is how the matter is now before us.

Mr. V.R. Reddy, learned senior advocate for the Bank, submitted that it

could not be said that action of the Bank under clause 16 of the Bipartite

Settlement was in any way wrong. He said rules of natural justice were

inbuilt in clause 15 of Bipartite Settlement and law laid by this Court in

D.K. Yadav's case was not applicable. In D.K. Yadav v. J.M.A. Industries

Ltd., [1993] 3 SCC 259 the workman was intimated that he had willfully

absented from duty continuously for more than eight days without leave or

prior information or intimation or previous permission from the management

and, therefore, "deemed to have left the service of the company on your own

account and lost your lien and the appointment with effect from December 3,

1980". This was based on Clause 13(2)(iv)2 of the Certified Standing Order

of the company. It was contended by the workman that despite his reporting

to duty on December 3, 1980 and everyday continuously thereafter he was

prevented entry at the gate and he was not allowed to sign the attendance

register. His plea was that he was not permitted to joint duty without

assigning any reason. Labour Court found that the workman had failed to

prove his case and that the action of the management was in accordance with

the Standing Orders and it was not a termination nor retrenchment under the

Act and that in terms of

2. Clause 13(2)(iv) Standing Order read thus :

"if a workman remains absent without sanctioned leave or beyond the period

of leave originally granted or subsequently extended, he shall lose his

lien on his appointment unless :

(a) he returns within 8 calendar days of the commencement of the

absence of the expiry of leave originally granted or subsequently extended

as the cases may be; and

(b) explains to the satisfaction of the manager/management the reason

of his absence or his inability to return on the expiry of the leave, as

the case may be. The workman not reporting for duty within 8 calendar days

as mentioned above, shall be deemed to have automatically abandoned the

services and lost his lien on his appointment. His name shall be struck off

from the muster-rolls in such an eventuality. the Standing Orders workman

lost his lien on his appointment and he was not entitled to reinstatement.

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From the Award of the Labour Court matter came to this Court under Article

136 of the Constitution. There could not be automatic termination under the

Certified Standing Orders on absence without or beyond the period of

sanctioned leave for more than eight days. This Court said that the

principle of natural justice and duty to act in just, fair and reasonable

manner must be read into the Standing Orders. So the termination under the

Standing Orders without holding any domestic enquiry or offering any

opportunity to the workman was held to be violative of the principles of

natural justice. This Court observed :

" 12. Therefore, fair play in action requires that the procedure adopted

must be just, fair and reasonable. The manner of exercise of the power and

its impact on the rights of the person affected would be in conformity with

the principles of natural justice. Article 21 clubs life with liberty,

dignity of person with means of livelihood without which the glorious

content of dignity of person would be reduced to animal existence. When it

is interpreted that the colour and content of procedure established by law

must be in conformity with the minimum fairness and processual justice, it

would relieve legislative callousness despising opportunity of being heard

and fair opportunities of defence. Article 14 has a pervasive processual

potency and versatile quality, equalitarian in its soul and allergic to

discriminatory dictates. Equality is the antithesis of arbitrariness. It is

thereby, conclusively held by this Court that the principles of natural

justice are part of Article 14 and the procedure prescribed by law must be

just, fair and reasonable."

This Court held :

"Therefore, we hold that the principles of natural justice must be read

into the Standing Order No. I3(2)(iv). Otherwise it would become arbitrary,

unjust and unfair violating Article 14. When so read the impugned action is

violative of the principles of natural justice."

At this we may as well refer to other judgments cited at the Bar.

In Hindustan Paper Corporation v. Pumendu Chakrobarty and Others, [1996] 11

SCC 404, respondent workman was an employee of Hindustan Paper Corporation

on January 5, 1989 passed an order invoking the Rule 23(vi)(E)4 of its

relevant Rules, which was to the effect that the workman deemed to have

lost his lien on his appointment with the Corporation. Workman on May 27,

1988 applied for causal leave. Next day an FIR was lodged against him and

others under Section 302/201 read with Section 34 IPC. On June 3, 1988

workman after expiry of the casual leave sent an application for earned

leave for 11 days giving reason "personal affair" and mentioning his leave

address other than what was with the Corporation. On June 6, 1988 Senior

Manager of the Corporation received a message from the police to direct the

workman to report to the police station. Police was informed about the

application of the workman for grant of earned leave. Thereafter the

workman sent series of leave applications up to November, 1988 without

caring to find out whether his previous applications for leave had been

sanctioned or not. Initially the workman did not disclose any reason for

his absence and subsequently he mentioned "on medical grounds". He did not

send any medical certificate and did not disclose his leave address. All

this time Corporation was being approached by the police to inform them the

whereabouts of the workman as he was an accused in a murder case. On

November 30, 1988 Corporation informed the workman that his leave on

medical ground was not sanctioned as his applications were not supported by

medical certificates and that he was liable to be treated as an

unauthorised absentee. The workman was, therefore, called upon to submit

his explanation, if any, within 15 days of receipt of the letter. In reply

thereto workman stated "baldly" that he was suffering from chest plain for

quite some time and that he had consulted a specialist outside HPC for

personal reasons and that medical certificate would be produced at the time

of this joining. Under these circumstances Corporation passed order date

January 5, 1989. Workman approached the Gauhati High Court, which set aside

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the order of the Corpo-ration and directed reinstatement of the workman

with 50 per cent back wages. This led the Corporation to come to this

Court. This Court said that from the record that the inference had to be

drawn that either the medical certificates

4. 23. Penalties -

(vi) Termination of Service

(E) loss of lien on his appointment by an employee,

(1) Proceeding on leave without prior sanction and remaining

unauthorisedly absent for more than 8 consecutive days

and/or

(2) Overstaying his sanctioned leave beyond originally granted or

subsequently extended for more than 8 consecutive days. . were not genuine

in the sense that they were not obtained then and there or the workman

deliberately did not disclose them along with the leave applica-tions and

that even before this Court no proper explanation was forthcoming from the

workman on that aspect. It was, however, conceded by the Corpo-ration that

Rule 23(vi)(E) had to be construed by reading into it the principles of

natural justice. This Court then did not hold the Rule to be ultra vires

Article 14 of the Constitution and said :

"12. We consider that in view of this concession made by the learned

counsel on behalf of the appellant-Corporation that the said Rule must be

read and given effect to, subject to the compliance of the principles on

natural justice, it cannot be said that the Rule is arbitrary or

unreasonable or ultra vires Article 14 of the Constitution. In other words,

before taking action under the said clause, an opportunity should be given

to the employee to show cause against the action proposed and if the cause

shown by the employees is good and acceptable, it follows that no action in

terms of the said clause will be taken. Understood in this sense, it cannot

be said that the said clause is either unreasonable or violative of

"Article 16 of the Constitution."

Then this Court held :

"15. We have extracted Rule 23 in full. The explanation to the Rule

specifically states that certain items enumerated thereunder shall not be

treated as a penalty at all within the meaning of Rule 23. For our case the

relevant sub-clause is (vi)(E) which says that proceeding on leave without

prior sanction and remaining unauthorisedly absent for more than 8

consecutive days; and/or overstaying his sanctioned leave beyond the period

originally granted or subsequently extended for more than 8 consecutive day

would result in loss of lien of the appointment of the employees. In this

case we have seen that the first respondent had proceeded on leave without

prior sanction and remained unauthorisedly absent for more than 6 months

consecutively which obliged the appellant-Corporation to issue

communication to the first respondent calling upon him to explain.

Unfortunately, the first respondent, for reasons best known to him, has not

availed himself of the opportunity as seen earlier but replied in a half-

hearted way which resulted in the impugned order. Therefore, under the

circumstances, it cannot be said that the principles of natural justice

have not been complied with or the circumstances require any enquiry as

contemplated under Rule 25."

This Court was thus of the view that there "was no good reason for the High

Court to interfere with the impugned order of the appellant-Corporation

dated January 5, 1989".

In Uptron India Ltd. v. Shammi Bhan and Another, [1998] 6 SCC 538, workman

was permanent employee of the appellant. On November, 7, 1984 she proceeded

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and remained till January 29, 1985 on maternity leave. Thereafter she

allegedly remained absent with effect from January 30, 1985 till April 12,

1985 without any application for leave and consequently by order dated

April 12, 1985 appellant informed the workman that her services stood

automatically terminated in terms of Clause 17(g)6of the Certified Standing

Orders. This Court, where one of us (Saghir Ahmad, J.) was a party, said :

"Clause 17(g), which has been extracted above, Significantly does not say

that the services of a workman who overstays the leave for more than seven

days shall stand automatically terminated. What it says is that "the

services are liable to automatic termination". This provision, therefore,

confers a discretion upon the management to terminate or not to terminate

the services of an employee who overstays the leave. It is obvious that

this discretion cannot be exercised, or permitted to be exercised

capriciously. The discretion has to be based on an objective consideration

of all the circumstances and material which may be available on record.

What are the circumstances which compelled the employee to proceed on

leave; why he overstayed the leave; was there any just and reasonable cause

for overstaying the leave; whether he gave any further application for

extension for leave; whether any medical certificate was sent if he had, in

the meantime, fallen ill? These arc questions which would naturally arise

while deciding to terminate the services of the employee for overstaying

the leave. Who would answer these questions and who would furnish the

material to enable the management to decide whether to terminate or not to

terminate the services are against questions which have an answer inherent

in the provision itself, namely, that the employee

6. 17(g) The services of a workman are liable to automatic termination if

he overstays on leave without permission for more than seven days. In case

of sickness, the medical certificate must be submitted within a week

against whom action on the basis of this provision is proposed to be taken

must be given an opportunity of hearing. The principles of natural justice,

which have to be read into the offending clause, must be complied with and

the employee must be informed of the grounds for which action was proposed

to be taken against him for overstaying the leave."

In Bharat Forge Co. Ltd. v. A.B. Zodge and Another, [1996] 4 SCC 374, the

management was denied to by the Industrial Tribunal to lead evidence in

support of the impugned order of dismissal. It was not disputed that the

request was made before the closure of the proceedings before the Tribunal.

This Court held :

"A domestic inquiry may be vitiated either for non-compliance of rules of

natural justice or for perversity. Disciplinary action taken on the basis

of a vitiated enquiry does not stand on a better footing than a

disciplinary action with no enquiry. The right of the employer to adduce

evidence in both the situations is well recognised. So the employer is

entitled to adduce evidences, for the first time, before the Tribunal even

if the employer had held no inquiry or the inquiry held by the employer is

found to be perverse."

Two principles emerge from the decision (1) principles of natural justice

and duty to act in just, fair and reasonable manner have to be read in

Certified Standing Orders which have statutory force. These can be applied

by Labour Court and Industrial Tribunal even to relations between

management and workman though based on contractual obligation; and (2)

where domestic inquiry was not held or it was vitiated or some reason the

Tribunal or Court adjudicating an industrial dispute can itself go into the

question raised before it on the basis of the evidence and other material

on record.

In the present case action was taken by the Bank under Clause 16 of the

Bipartite Settlement. It is not disputed that Dayananda absented himself

from the work for a period of 90 or more consecutive days. It was

thereafter that the Bank served a notice on him calling upon to report for

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duty within 30 days of the notice stating therein the grounds for the Bank

to come to be conclusion that Dayananda had no intention of joining duties.

Dayananda did not respond to the notice at all. On the expiry of the notice

period Bank passed orders that Dayananda had voluntarily retired from the

service of the Bank. Now what are the requirements of principles of natural

justice, which are required to be observed? These are : (1) workman should

know the nature of the complaint or accusation; (2) an opportunity to state

his case; and (3) the management should act in good faith which means that

the action of the management should be fair, reasonable and just. All these

three criteria have been fully met in the present case. Principles of

natural justice are inbuilt in Clause 16 of the Bipartite Settlement. When

evidence was led before the Tribunal, Bank produced the registered covers,

which had been received back with the endorsement "refused" and the

addressee "not found during delivery time". Dayananda said he never refused

to receive the notice. In these circumstances Tribunal thought in necessary

to hold that notice was not served on Dayananda as the Bank did not examine

the postman. The notice was sent on the correct address of Dayananda and it

was received back with the postal endorsement "refused". A clear

presumption arose in favour of the Bank and against Dayananda. Yet the

Tribunal held that no notice was given to Dayananda as postman was not

produced by the Bank. This appears to us to be rather an incongruous

finding by the Tribunal. Unfortunately, High Court did not go into this

question at all. Considering the conduct of Dayananda all this period and

after three years of his having voluntarily retired from the Bank in terms

of Clause 16 of the Bipartite Settlement his statement that he did not

receive the notice was a sheer lie. His whole edifice was built on

falsehood and yet the Tribunal was there to give him relief on the platter

though at the same time criticised his conduct during his employment with

the Bank.

It is no point laying stress on the principles of natural justice without

understanding their scope or real meaning. There are two essential elements

of natural' justice which are : (a) no man shall be judge in his own cause;

and (b) no man shall be condemned, either civilly or criminally, without

being afforded an opportunity of being heard in answer to the charge made

against him. In course of time by various judicial pronouncements these two

principles of natural justice have been expanded, e.g., a party must have

due notice when the Tribunal will proceed; Tribunal should not act on

irrelevant evidence or shut out relevant evidence; if the Tribunal consists

of several members they all must sit together at all times; Tribunal should

act independently and should not be biased against any party; its action

should be based on good faith and order and should act in just, fair and

reasonable manner. These in fact are the extensions or refinements of the

main principles of natural justice stated above. Bank has followed the

requirements of Clause 16 of the Bipartite Settlement. It rightly held that

Dayananda had voluntarily retired from the service of the Bank. Under these

circumstances it was not necessary for the Bank to hold any inquiry before

passing the order. An inquiry would have been necessary if Dayananda had

submitted his explanation which was not acceptable to the Bank or contended

that he did report for duty but was not allowed to joint by the Bank.

Nothing of the like has happened here. Assuming for a moment that inquiry

was necessitated, evidence led before the Tribunal clearly showed that

notice was given to Dayananda and it is he who defaulted and offered no

explanation of his absence from duty and did not report for duty within 30

days the notice as required in Clause 16 of the Bipartite Settlement.

This undue reliance on the principles of natural justice by the Tribunal

and even by the High Court has certainly led to miscarriage of justice as

far as Bank is concerned. Conduct of Dayananda as an employee of the Bank

has been astounding. It was not a case where the Tribunal should have given

any relief to Dayananda and yet the Bank was directed to reinstate him with

continuity of service and mercifully the latter part of the relief High

Court struck down. There was no occasion for the Tribunal to direct that

Dayananda be reinstated in service or for the High Court not to have

exercised its jurisdiction under Article 226 of the Constitution to set

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aside the Award.

We, therefore, allow the appeal, set aside the impugned judgment of the

High Court and also the Award dated September 26, 1994 of the Central

Government Industrial Tribunal.

High Court had noticed that since September 26, 1994 Dayananda had been

paid wages in terms of Section 17-B of the Industrial Disputes Act, 1947.

When the matter came to this Court on special leave petition, while issuing

notice on February 8, 1999 it was ordered "Statute quo regarding implemen-

tation of the order of the High Court as existing today to continue till

further orders". It is not clear how long Dayananda has been paid his

wages. Even though we have set aside the order of the Tribunal we direct

that the wages so far paid to Dayananda be neither recorded nor adjusted by

the Bank. However, there shall be no order as to costs.