MANJU SAXENAversusUNION OF INDIA & ANR.

                        [2018] 14 S.C.R. 993                            993


                   MANJU SAXENA                                         A
                             v.
               UNION OF INDIA & ANR.
         (Civil Appeal Nos. 11766-11767 of 2018)
                  DECEMBER 03, 2018
                                                                        B
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
      Industrial Disputes Act, 1947:
       ss.2(oo) and 25F – The post held by the employee became
redundant – Offer of four alternate posts by the employer – Refused
by the employee – Severance package also refused by the employee        C
– Thereupon termination of her service – Compensation of
Rs.8,17,071/- granted – Industrial dispute raised seeking
enhancement of severance package – Conciliation proceedings
failed – Industrial Tribunal directed the employer to reinstate the
employee with continuity of service and full terminal benefits – Writ
petition by employer – During pendency of writ, interim maintenance     D
u/s.17B granted which was affirmed in appeal – Writ petition of
employer allowed by Single Judge of High Court directing the
employee to refund the entire amount received by her except the
sum of Rs.8,17,071/- – Order of Single Judge upheld by Division
Bench in LPA – Review also dismissed – On appeal, held: The             E
conduct of employee would constitute voluntary abandonment of
service – Hence, she could not have been in “continuous service”
as defined u/s. 2(oo) – Since she was not in “continuous service”,
s. 25F would cease to apply – Employee has already received an
amount which is almost double the amount claimed by her – The
received amount shall be treated as a final settlement of all her       F
claims.
      Dismissing the appeals, the Court
      HELD: 1. It is the admitted position that the employer Bank
had offered four alternative positions to the appellant which were      G
at par with her existing pay scale and emoluments. The appellant
was however not willing to accept any of the alternate positions
offered to her. Nor was she willing to accept the redundancy
package offered to her. In the circumstances the Bank was
justified in terminating the services of the appellant.
[Para 5.1][1001-E-F]                                                    H
                                993
994               SUPREME COURT REPORTS                 [2018] 14 S.C.R.


A           2. The Appellant’s conduct would constitute a voluntary
      abandonment of service, since the appellant herself had declined
      to accept the various offers of service in the Bank. Furthermore,
      even during conciliation proceedings she has only asked for an
      enhanced severance package, and not reinstatement. Once it is
      established that the appellant had voluntarily abandoned her
B
      service, she could not have been in “continuous service”
      as defined under s. 2(oo) the Industrial Disputes Act, 1947.
      [Para 5.3][1002-D-F]
            The Buckingham & Carnatic Co. Ltd. v Venkatiah &
            Ors. (1964) 4 SCR 265 ; Vijay S Sathaye v Indian
C           Airlines Ltd. & Ors. (2013) 10 SCC 253 : [2013] 10
            SCR 73 – relied on.
            3. Section 25F of the 1947 Act lays down the conditions
      that are required to be fulfilled by an employer, while terminating
      the services of an employee, who has been in “continuous
D     service” of the employer. Hence, s. 25F of the Act, would cease
      to apply on her. [Para 5.3][1002-E-F]
             4. In the present case, the Bank has paid the appellant a
      sum of Rs. 8,17,071/-, which included 6 months’ pay in lieu of
      Notice under s. 25F(a) and an additional amount calculated on
E     the basis of 15 days’ salary multiplied by the number of years of
      service, in compliance with s. 25F(b). However, no Notice was
      sent to the Appropriate Government or authority notified, in
      compliance with s. 25F(c) of the Act. The requirement of clause
      (c) of s. 25F can be treated only as directory and not mandatory.
F     [Para 5.3][1003-G-H; 1004-A-B]
            Gurmail Singh & Ors. v State of Punjab & Ors. (1991)
            1 SCC 189 : [1990] 2 Suppl. SCR 367 ; Pramod Jha &
            ors. v State of Bihar & Ors. (2003) 4 SCC 619 : [2003]
            2 SCR 512 – relied on.
G           5. The appellant has admittedly received an amount of Rs.
      1,07,73,736/- under various heads. The appellant has claimed an
      amount of Rs. 69.99 lakhs. The Appellant has already received
      almost double the amount claimed by her. The afore-said amounts
      received by her may be treated as a final settlement of all her
      claims. [Para 5.4 and 6][1004-C-E; 1004-F]
H
         MANJU SAXENA v. UNION OF INDIA & ANR.                            995


      Hathisingh Manufacturing Ltd. v Union of India AIR                  A
      1960 SC 923 : [1960] SCR 528 – followed.
                       Case Law Reference
[1964] 4 SCR 265                relied on                Para 5.3
[2013] 10 SCR 73                relied on                Para 5.3         B
[1960] SCR 528                  followed                 Para 5.3
[1990] 2 Suppl. SCR 367         relied on                Para 5.3
[2003] 2 SCR 512                relied on                Para 5.3
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11766-             C
11767 of 2018.
      From the Judgment and Order dated 14.07.2017 of the Division
Bench of the High Court of Delhi in LPA No. 467/2017 and review
order dated 13.09.2017 in RP No. 380/2017 in LPA No. 467/2017.
      Manju Saxena (Appellant-in-person).                                 D

      Aman Lekhi, ASG, Dhruv Mehta, Ashok Kumar Panda, Sr. Advs.,
Ateev Mathur, Sanjay Gupta, Ms. Jagriti Ahuja, Ms. Varsha Kriplani,
Gagan Gupta, R. R. Rajesh, Raj Bahadur, Ms. Anil Katiyar, Dushyant
Parashar, Advs. for the Respondents.
                                                                          E
      The Judgment of the Court was delivered by
      INDU MALHOTRA, J. Leave granted.
      1. The present S.L.P.s arise out of the impugned Judgment dated
14.07.2017 passed in L.P.A. No. 467/2017, and Order dated 13.09.2017
passed in R.P. No. 380/2017 of the Delhi High Court, wherein the High     F
Court dismissed the L.P.A filed by the Appellant against the 2 nd
Respondent - HSBC Bank.
      2. Briefly stated, the factual matrix in which the present S.L.P.
has been filed are summarized as under:
         2.1 The Appellant was appointed on 01.04.1986 as a “Lady         G
      Confidential Secretary” by the 2nd Respondent- HSBC Bank,
      (hereinafter referred to as “the R2-Bank”).


                                                                          H
996          SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A         Subsequently, on 23.04.1992 the Appellant came to be promoted
      as a “Senior Confidential Secretary” to the Senior Manager (North
      India) of HSBC.
          2.2 In May 2005, the post of “Senior Confidential Secretary”
      became redundant, as the Officer with whom the Appellant was
B     attached, left the services of the R2-Bank. Her services were
      utilized by giving her some other duties for the time being, till
      alternate jobs could be offered to her.
          The Management admittedly offered her four alternate jobs of
      (i) Business Development Officer, (ii) Customer Service Officer,
C     (iii) Clearing Officer, and (iv) Banking Services Officer. Each of
      these jobs were in the same pay scale.
         The Appellant has admitted in her Statement of Claim dated
      20.03.2006, that she declined to accept any of these jobs on the
      ground that such jobs were either temporary in nature, or the
D     claimant did not possess the experience or work-knowledge to
      take up such jobs.
         2.3 On 01.10.2005, the Bank issued a Letter terminating the
      services of the Appellant on the ground that her current job had
      become redundant. The Appellant was offered several job
E     opportunities, however, she did not choose any of these offers.
      The Bank had offered a generous severance package, which she
      was not prepared to accept. The Bank terminated her service,
      and paid 6 months’ compensation in lieu of Notice as per the
      contract of employment. In addition, as a special case, the Bank
      paid Compensation, which was equivalent to 15 days’ salary for
F     every completed year of service. The total amount paid to the
      Appellant was Rs. 8,17,071/-.
         2.4 The Appellant raised an Industrial Dispute before the
      Regional Labour Commissioner under the Industrial Disputes Act,
      1947 (hereinafter referred to as the I.D. Act) on 03.10.2005, and
G     sought enhancement of the severance package paid to her. It is
      relevant to note that the Appellant did not raise any claim for re-
      instatement to the R2-Bank.
          Conciliation proceedings were commenced between the
      Appellant and R2-Bank, wherein the Appellant made the following
H     claims:
  MANJU SAXENA v. UNION OF INDIA & ANR.                                 997
          [INDU MALHOTRA, J.]

HEADS                                     AMOUNT (INR)                  A
Severance                                 69,99,600.00
Provident Fund                            8,90,111.60
Gratuity                                  3,81,209.00
Leave Encashment                          86,541.40
                                                                        B
Compensation + Notice Pay                 8,17,071.00
TOTAL                                     91,74,533.00
The Bank, in response, offered the following package:
HEADS                                     AMOUNT (INR)
Severance                                 32,79,600.00                  C
Provident Fund                            8,90,111.60
Gratuity                                  3,81,209.00
Leave Encashment                          86,541.40
Compensation + Notice Pay                 8,17,071.00
                                                                        D
TOTAL                                     57,29,533.00
    The only difference between the two parties was with respect
to the amount of Severance payable to the Appellant. Since the
parties were unable to arrive at a settlement, the conciliation
proceedings failed.
                                                                        E
    2.5 The Appellant filed her Statement of Claim dated
20.03.2006, before the Central Government Industrial Tribunal
(referred to as “the CGIT”) claiming inter alia an enhanced
severance package, waiver of outstanding Housing Loan, and full
pension. The Claim was opposed by the R2-Bank. The R2-Bank
filed its Written Statement and contested the claim of the Appellant,   F
stating that the Appellant was not a “workman” under the I.D.
Act, 1947. The Bank further stated that they had followed the
procedure outlined under the I.D. Act, while terminating the services
of the Appellant.
    The Ld. CGIT passed an Award dated 01.06.2009, and directed         G
the R2-Bank to re-instate the Appellant, with full terminal benefits.
   2.6 The R2-Bank filed Writ Petition bearing No. W.P. (C)
11344/2009 before the Delhi High Court, to challenge the Award
passed by the CGIT. The High Court vide Interim Order dated
22.03.2013 remanded the matter to the CGIT for fresh                    H
998          SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A     consideration on the point whether the Appellant could be
      considered to be a “Workman” as per the Industrial Disputes Act,
      1947. The Writ Petition was kept pending during the pendency of
      the remand. The CGIT passed a fresh Award dated 15.07.2015
      holding the Appellant to be a “workman” under the I.D. Act, 1947.
B        The Ld. CGIT directed the R2-Bank to re-instate the Appellant
      with continuity of service, full back wages, and all consequential
      benefits.
          2.7 During the pendency of the Writ Petition, the Appellant
      had filed an Application under S. 17B of the I.D. Act, 1947 before
C     the Delhi High Court seeking interim maintenance. The High Court
      vide Interim Order dated 27.07.2012 directed payment of a
      monthly sum of Rs. 75,000/- to the Appellant, towards Interim
      Maintenance u/S. 17B of the I.D. Act, 1947.
          2.8 Aggrieved by the Order dated 27.07.2012, the R2 Bank
D     filed an L.P.A. before the Delhi High Court to challenge the amount
      awarded to the Appellant u/S. 17B. The Division Bench vide Order
      dated 24.08.2012, reduced the monthly sum payable to Rs. 58,330/
      - per month which was as per her last drawn salary.
         The S.L.P. filed by the Appellant being S.L.P. (C) No. 36513/
E     2012 to challenge the Order dated 24.08.2012, came to be
      dismissed vide Order dated 07.01.2013.
         The Appellant accordingly has been paid back wages u/S. 17B
      at Rs. 58,330/- per month.
         2.9 The Appellant also raised a claim for waiver of the
F     outstanding amount of a Housing Loan availed by her during the
      course of her service, which was outstanding on the date of her
      termination. The total amount of outstanding loan was
      approximately Rs. 22,16,702/-.
          The Appellant challenged proceedings for recovery initiated
G     by the R2-Bank before the Delhi High Court in W.P. (C) No.
      19451/2006. A Consent Order dated 18.03.2010 came to be passed
      whereby the outstanding amount of Rs. 22,16,702/- towards the
      Housing Loan, was to be adjusted from her back wages, subject
      to the final outcome of the W.P. (C) No. 13344/2009.
H
         MANJU SAXENA v. UNION OF INDIA & ANR.                              999
                 [INDU MALHOTRA, J.]

         2.10 The Writ Petition filed by the R2-Bank was allowed by         A
      the learned Single Judge vide Judgment and Order dated
      12.04.2017, and the Award passed by the CGIT came to be set
      aside.
         The High Court accepted the R2-Bank’s submissions, and held
      that the Appellant’s refusal to accept any of the four alternate      B
      positions offered to her, amounted to “abandonment” of her job.
      Hence there was no question of her services having been illegally
      terminated. The Appellant had received monetary compensation
      under several heads, to the tune of Rs. 1,07,73,736/- during the
      pendency of the Writ Petition, which was almost 13 times her
      legal entitlement. This included payments made under the various      C
      heads such as Compensation paid during termination, Gratuity,
      Payment towards Interim Award, Payments under S. 17B,
      Payment towards legal expenses. The Appellant was directed to
      refund the entire amount except the sum of Rs. 8,17,071/-, which
      was the compensation paid at the time of termination.                 D
         2.11 Aggrieved by the Judgment & Order dated 12.04.2017 in
      W.P. (C) 11334/2018, the Appellant filed L.P.A. No. 467/2017
      before the Division Bench. The Division Bench vide Judgment &
      Order dated 14.07.2017 dismissed the L.P.A., and upheld the
      Judgment of the learned Single Judge holding that the Appellant       E
      had abandoned her job.
         The Division Bench however modified the operative direction
      passed by the Ld. Single Judge for restitution of the amounts paid.
      The Division Bench ordered that the Appellant shall not be required
      to restitute the amount of Rs. 8,17,071/- paid at the time of         F
      termination, the litigation expenses, and the amounts paid under
      S. 17B of the I.D. Act, 1947.
        2.12 The Appellant filed Review Petition No. 380/2017 which
      was dismissed vide Order dated 13.09.2017.
         2.13 The Appellant has assailed the Judgment dated 14.07.2017      G
      and Order dated 13.09.2017 passed by the Division Bench in the
      L.P.A. and the Review Petition, by the present S.L.P.s.
      3. The Appellant was appearing in Person. Even though the Court
had made a suggestion that a Counsel be appointed to represent her, she
declined the same. The submissions made by the Appellants are:              H
1000               SUPREME COURT REPORTS                       [2018] 14 S.C.R.


 A             3.1 The Appellant submitted that she is entitled to a Severance
            Package of Rs. 69.99 lakhs, which is equivalent to her last drawn
            salary of Rs. 58,330/- per month for a period of 10 years, i.e. 120
            months.
               The calculations put forth by the Appellant is as follows:
 B             [Severance Package = Last drawn monthly Salary x 120
               months];
               [Rs. (58,330 x 120) = Rs. 69,99,600/-]
               3.2 The Appellant submitted that she had been in “continuous
 C          service” for over 20 years with the R2-bank. Consequently, she
            was eligible for all benefits payable to a ‘workman’ under the
            I.D. Act.
               3.3 The Appellant further submitted that the terms of the
            Housing Loan taken by her during the course of service, provided
 D          for 782certain relaxations and benefits to the employees. The
            Appellant submitted that her outstanding loan amount should be
            waived by the R2-Bank.
                3.4 The Appellant submitted that the R2-bank had been
            deducting T.D.S. on all the payments made to her during the
            pendency of the legal proceedings. The Appellant submits that
 E
            this deduction is illegal, and she is entitled to a refund of a sum of
            Rs. 13,69,083/- deducted towards T.D.S.
              4. The R2-Bank was represented by Mr. Dhruv Mehta, Sr. Adv,
       alongwith Mr. Gagan Gupta, Adv, the Counsel for the R2-bank inter
       alia submitted:
 F
                4.1 It is the admitted position that the Appellant’s post had
            become redundant when her boss left the Bank. The Appellant
            was offered four alternate positions of (i) Business Development
            Officer, (ii) Customer Service Officer, (iii) Clearing Officer, and
            (iv) Banking Services Officer in the same pay scale. The Appellant
 G          however declined each of these offers. In these circumstances,
            her services came to be terminated. As a special case, a severance
            amount of Rs. 8,17,071/- was paid apart from the other benefits.
               4.2 It was further submitted that the Bank complied with all
            the mandatory requirements specified in S. 25F (a) and (b) of the
 H
        MANJU SAXENA v. UNION OF INDIA & ANR.                                1001
                [INDU MALHOTRA, J.]

      I.D. Act. The compensation of Rs. 8,17,071/- granted to the            A
      Appellant, was computed in accordance with S. 25F (b) i.e.
      compensation equivalent to 15 days’ salary multiplied by the
      number of years of employment.
         The High Court had recorded that the Appellant had already
      received monetary benefits in excess of the compensation she           B
      was entitled to under the law. Therefore, the Appellant was not
      entitled to any additional amount.
         4.3 The R2-Bank submitted that during Conciliation
      proceedings, they had offered a Severance Package of Rs. 32.79
      lacs which was worked out on the basis of the last drawn Basic         C
      Salary + Monthly Allowances, for past 10 years (equal to 120
      months). The Basic Salary was Rs. 19,280/- and Monthly
      Allowances [H.R.A. + Medical + L.T.A. of Rs. 8,050/-]. The
      total basic component was Rs. 27,330/- (19,280 + 8,050).
         The severance package by the Bank was computed as follows:          D
         Severance Package = (Monthly basic component x 120 months)
         = Rs. 27,330 x 120 = Rs. 32,79,600/-
      5. We have perused the pleadings and Written Submissions made
by the parties.
                                                                             E
          5.1 It is the admitted position that the Bank had offered four
      alternative positions such as “Business Development Officer”,
      “Customs Service Officer”, which were at par with her existing
      pay scale and emoluments. The Appellant was however not willing
      to accept any of the alternate positions offered to her. Nor was
      she willing to accept the redundancy package offered to her. In        F
      the circumstances the R2-Bank was justified in terminating the
      services of the Appellant, vide termination letter dated 01.10.2005.
         5.2 The Bank has complied with the statutory requirements
      under S. 25F of the I.D. Act which lays down the conditions that
      an employer must comply, on the retrenchment of a workman.             G
          In the present case, the High Court has held that the Appellant
      had “abandoned” her job, on her refusal to accept any of the
      alternative positions with the bank, on the same pay scale.

                                                                             H
1002                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


 A                5.3 The concept of “abandonment” has been discussed at length
              in a Judgment delivered by a 3-Judge Bench of the Supreme Court
              in The Buckingham & Carnatic Co. Ltd. v Venkatiah & Ors.1
              wherein it was held that abandonment of service can be inferred
              from the existing facts and circumstances which prove that the
              employee intended to abandon service. This case was followed
 B
              by a two judge bench in Vijay S Sathaye v Indian Airlines Ltd.
              & Ors.2 .
                  In the case before us, the intentions of the Appellant can be
              inferred from her refusal to accept any of the 4 alternative positions
              offered by the R2-Bank. It is an admitted position that the
 C            alternative positions were on the same pay scale, and did not involve
              any special training or technical knowhow.
                 In any event, the claims raised by the Appellant before various
              forums were with respect to enhancement of compensation, which
              are monetary in nature. The Appellant’s conduct would constitute
 D            a voluntary abandonment of service, since the Appellant herself
              had declined to accept the various offers of service in the Bank.
              Furthermore, even during conciliation proceedings she has only
              asked for an enhanced severance package, and not reinstatement.
                 Once it is established that the Appellant had voluntarily
 E            abandoned her service, she could not have been in “continuous
              service” as defined under S. 2(oo) the I.D. Act, 1947.
                 S. 25F of the I.D. Act, 1947 lays down the conditions that are
              required to be fulfilled by an employer, while terminating the
              services of an employee, who has been in “continuous service”
 F            of the employer. Hence, S. 25F of the I.D. Act, would cease to
              apply on her.
                 The condition precedent for Retrenchment of an employee, as
              provided in S. 25F of the I.D. Act, 1947 was discussed by a
              Constitution Bench of this Court in Hathisingh Manufacturing
 G            Ltd. v Union of India3, while deciding the constitutional validity
              of S. 25FFF. The Constitution Bench held,

       1
         (1964) 4 SCR 265
       2
         (2013) 10 SCC 253
       3
 H       AIR 1960 SC 923
  MANJU SAXENA v. UNION OF INDIA & ANR.                               1003
          [INDU MALHOTRA, J.]

   “9. …Under Section 25-F, no workman employed in an                 A
   industrial undertaking can be retrenched by the employer
   until (a) the workman has been given one month’s notice
   in writing indicating the reasons for retrenchment and the
   period has expired or the workman has been paid salary
   in lieu of such notice, (b) the workman has been paid
                                                                      B
   retrenchment compensation equivalent to 15 days’ average
   salary for every completed year of service and (c) notice
   in the prescribed manner is served on the appropriate
   Government….By S. 25F a prohibition against
   retrenchment, until the conditions prescribed by that Section
   are fulfilled in imposed.”                                         C
S. 25F of the I.D. Act, 1947 is extracted herein below:
   “25F. Conditions precedent to retrenchment of workmen.-
   No workman employed in any industry who has been in
   continuous service for not less than one year under an
   employer shall be retrenched by that employer until—               D

   (a) The workman has been given one month’s notice in
   writing indicating the reasons for retrenchment and the
   period of notice has expired, or the workman has been
   paid in lieu of such notice, wages for the period of the
   notice;                                                            E

   (b) the workman has been paid, at the time of retrenchment,
   compensation which shall be equivalent to fifteen days’
   average pay [for every completed year of continuous
   service] or any part thereof in excess of six months; and
                                                                      F
   (c) notice in the prescribed manner is served on the
   appropriate Government [or such authority as may be
   specified by the appropriate Government by notification
   in the Official Gazette].”
    In the present case, the R2-Bank has paid the Appellant a sum
                                                                      G
of Rs. 8,17,071/-, which included 6 months’ pay in lieu of Notice
under S. 25F(a) and an additional amount calculated on the basis
of 15 days’ salary multiplied by the number of years of service, in
compliance with S. 25F(b).

                                                                      H
1004                    SUPREME COURT REPORTS                     [2018] 14 S.C.R.


 A                   However, no Notice was sent to the Appropriate Government
                 or authority notified, in compliance with S. 25F(c) of the I.D. Act.
                     A three Judge Bench of this Court in Gurmail Singh & Ors.
                 v State of Punjab & Ors.4 Held that the requirement of clause
                 (c) of S. 25F can be treated only as directory and not mandatory.
 B               This was followed in Pramod Jha & ors. v State of Bihar &
                 Ors.5 wherein it was held that compliance with S. 25F(c) is not
                 mandatory.
                    5.4 The Appellant has admittedly received an amount of Rs.
                 1,07,73,736/- under various heads:
 C                  HEADS                                   AMOUNT (IN RS.)
                    Towards Notice Period                   1,77,684/-
                    Severance Pay                           6,39,387/-
                    Gratuity                                3,81,209/-
 D
                    Back Wages pursuant to Execution        8,00,000/-
                    Towards Interim Award                   33,19,096/-
                    Payments made under S. 17B.             54,56,360/-
                    TOTAL                                 1,07,73,736/-
 E
                    The Appellant has claimed an amount of Rs. 69.99 lakhs. The
                 Appellant has already received almost double the amount claimed
                 by her.
              6. In light of the discussions above, the afore-said amounts received
 F     by her may be treated as a final settlement of all her claims. The impugned
       Judgment of the Division Bench dated 14.07.2017, is modified to this
       extent.
             The Civil Appeals stand dismissed, with no order as to costs. All
       applications stand disposed of accordingly.
 G
       Kalpana K. Tripathy                                           Appeals dismissed.




       4
           (1991) 1 SCC 189
       5
 H         (2003) 4 SCC 619