Holding

Clause 2 of the bipartite settlement is a complete code that, upon the employee's failure to report within 30 days or provide a satisfactory explanation, lawfully deems the employee voluntarily retired, and Section 17‑B cannot be invoked without the required affidavit.

Summary

Viveka Nand Sethi, a cashier‑clerk of Jammu & Kashmir Bank, failed to resume duties after his leave expired and did not submit a proper medical‑leave application with a valid certificate despite repeated notices and memoranda. The Bank invoked clause 2 of the bipartite settlement (voluntary cessation of employment) and deemed him voluntarily retired, issuing an order of termination. An Industrial Tribunal awarded reinstatement, which was upheld by the High Court, but the Bank appealed to the Supreme Court. The Court held that clause 2 is a self‑contained code; when an employee neither reports within 30 days nor furnishes a satisfactory explanation, the legal fiction of voluntary retirement applies and a full departmental inquiry is not required. The Court also ruled that Section 17‑B of the Industrial Disputes Act could not be invoked because the workman had not filed the requisite affidavit. Consequently, the Bank's appeal was allowed and the workman's appeal dismissed.

Issues considered

The proper interpretation and applicability of clause 2 of the bipartite settlement between banks and workmen regarding voluntary cessation of employment.
Whether the principles of natural justice require a full departmental inquiry before the employer can deem an employee voluntarily retired under the settlement.
Whether Section 17‑B of the Industrial Disputes Act is applicable when the employee fails to file an affidavit in support of his claim.
The admissibility and binding effect of the bipartite settlement as an admitted document before the Industrial Tribunal.

Legislation cited

Industrial Disputes Act, 1947s. 17-B

Subjects

labour lawbipartite settlementvoluntary retirementnatural justiceIndustrial Disputes ActSection 17-Breinstatementemployer‑employee relations

Judgment

VIVEKA NANO SETHI A
v.
CHAIRMAN, J. AND K., BANK LTD. AND ORS.

MAY 3, 2005

[N. SANTOSH HEGDE AND S.B. SINHA, JJ.] B

Labour Law:

Bipartite Settlement between Bank and workmen-Clause 2-Providing
voluntary cessation of employment by employee on absenting from duty- C
Interpretation and applicability of-Workman not resuming duty nor filing
proper medical leave application after expiry of leave and also not giving
satisfactory explanation for his absence despite repeated opportunities-
Services dispensed with-Award directing reinstatement in service-Upheld
by High Court-On appeal held: Bipartite Settlement being an admitted D
document is to be considered in its proper perspective by Tribunal-Filing of
medical leave application without annexing proper medical certificates not a
bona fide act-Such application would not restrict invoc'ation of clause (2)-
Also there was sufficient compliance of principle of natural justice-Hence,
bank's appeal a/lowed-However, since workman did not file any affidavit,
section 17-B cannot be applied and as such workman's appeal dismissed- E
Industrial Disputes Act section 17-B-Estoppel.

Appellant, cashier-cum-clerk with the respondent-bank, did not
resume his duties after his leave had expired and did not file proper
application for grant of medical leave with a valid medical certificate
despite repeated opportunities. Bank issued notices and memorandums to F
the workman and thereafter, in terms of clause (2) of the Bipartite
Settlement between the bank and their workmen, services of the workmen
were dispensed with. Central Government Industrial Tribunal-cum-
Labour Court then passed an award directing workman to be reinstated
in service with the benefit of past senice without any back wages. Both G
Single Judge and the Division Bench of High Court upheld the award.
Hence the present appeals.

Allowing the Bank's appeal and dismissing workman's appeal, the
Court
1095 H
1096 SUPREME COURT REPORTS (2005) 3 S.C.R.

A HELD : 1.1. Clause (2) of the Bipartite Settlement entered into by
and between the Management of the Banks and their employees is a
complete code by itself which lays down as to how and in what manner
the employer can arrive at a satisfaction that the workman has no intention
to join his duties. The settlement is clear and unambiguous. It should be
B given a literal meaning. Clause (2) raises a legal fiction, whiCh is. of wide
import. A bare perusal of the settlement clearly shows that it is for the
employee concerned to submit a proper application for leave; and that
on receipt of'a notice contemplated thereunder, the workman must either:
(1) report for duties within thirty days; (2) give his explanation for his
absence satisfyin~ the management that he has not taken any employment
· C or avocation; and (3) show that he has no intention of not joining the
duties. It is, thus, only when the workman concerned does not join his
du!ies within thirty days or fails to file a satisfactory explanation, the legal
fiction comes into force. Once the action on the part of the employer is
found to be fair, the court in view of such legal fiction would call upon
the workman to prove contra. (1103-B-C-D)
D
1.2. The fact that there exists a Bipartite Settlement entered into by
and between the Banks and their workmen is not in dispute. The workman
was all along aware about the legal position inasmuch as, at all stages,
viz., issuance of notices and memorandums, passing of the order of
termination, the said settlement had been referred to. The Industrial
E
Tribunal erred in proceeding on the basis that the Bipartite Settlement
had not been proved. The settlement being an admitted document should
have been considered in its proper perspective by the Industrial Tribunal.
(1102-C-EI

F 1.3. It is not in dispute that after the period of leave came to an end,
the workman did not report back for duties. He also did not submit any
application for grant of further leave on medical ground or otherwise. It
is in that situation the memorandum was issued and he was asked to join
his duties. Despite receipt of the said memorandum, the workman did not
join duties pursuant whereto 'he was served with a show cause notice. He
G was required to resume his duties by the mentioned date otherwise he

H
would be deemed to have been discharged from the services of the Bank.
Opportunities after opportunities indisputably had been granted to the
workman to explain his position but he chose not to do so except filing
applications for grant of medical leave and that too without annexing
proper medical certificates. Further, enept for asking for grant of medical
-
VIVEKA NAND SETHI v. CHAIRMAN, J AND K., BANK LTD. ) 097

leave, he did not submit any explanation for his absence satisfying the A
management that he has not taken up any other employment or avocation
and that he has no intention of not joining his duties. Therefore, there is
no reason as to why the Bank could not arrive at a satisfaction that the
workman had no intention to join his .duties. Mere sending of an
application for grant of leave much after the period of leave was over as B
also the date of resuming duties cannot be said to be a bona fide act on
the part of the workman. Furthermore, only because on a later date an
application for grant of medical leave was filed, the same ipso facto would
not put an embargo on the exercise of the jurisdiction of the Bank from
invoking clause (2 ) of the bipartite settlement
(1102-F-H; 1103-C-D-F-GI C
2.1. In the instant case, the principles of natural justice were required
to be complied with but the same would not mean that a full-fledged
departmental proceeding was required to be initiated. A limited enquiry
as to whether the employee concerned had sufficient explanation for not D
reporting to duties after the period of leave had expired or failure on his
part on being asked so to do, amounts to sufficient compliance of the
requirements of the principles of natural justice. (1103-G-H; 1104-AI

2.2. The principle of natural justice, it is trite, is no unruly horse.
When facts are admitted, an enquiry would be an empty formality. Even E
the principle of estoppel will apply. The principle~ of natural justice are
required to be coruplied with having regard to the fact situation obtaining
therein. It cannot be put in a straitjacket formula. It cannot be applied in
a vacuum without reference to the relevant facts and circumstances of the
case. (1104-F-GI
F
Dr. Gurjeewan Garewal (Mrs.) v. Dr. Dumitra Dash (Mrs.) and Ors.,
(20041 S SCC 263; State of Punjab v. Jagir Singh, (2004) 8 SCC 129;
Karnataka State Road Transport Corporation and Anr. v. S.G. Koturappa and
Anr., (2005) 2 SCALE 493; Syndicate Bank v. General Secretary, Syndicate
Bank StaffAssociation and Anr., (20001 S SCC 65 a'!d Punjab and Sind Bank G
and Ors. v. Sakattar Singh, 1200111 SCC 214, relied on.

D.K. Yadav v. J.M.A. Industries Ltd., 1199313 SCC 259, referred to.

3. Section 17-8 of the of the Industrial Disputes Act cannot be applied
since the workman did not file an affidavit before the Single Judge of High H
1098 SUPREME COURT REPORTS [2005) 3 S.C.R.

A Court in support of his contentions and as required under law, as such
appeal filed by the workman cannot be entertained. 11106-G-HJ

4. In view the pleadings of the parties as also the materials on
records, it is not necessary to remit the matter to the Tribunal as it would
not serve any purpose. (1106-GI
B
CIVIL AP PELLATE JURJSDICTION : Civil Appeal No. 9676 of 2003.

From the Judgment and Order dated 10.2.2003 of the Jammu and
Kashmir High Court in L.P.A. (SW) No. 128 of 2000.

c WITH

C.A. No. 9678 of 2003.

Ashok Mathur for the Appellant.

D Rohit M. Alex, Mis. P.H. Paredh & Co., for the Respondents.

The Judgment ofthe Court was delivered by

S.B. SINHA, J : These two appeals arising out of a common judgment
and order dated 10.2.2003 passed by the High Court of Jammu and Kashmir
E at Jammu were taken up for hearing together and are being disposed of by
this common judgment.

Interpretation of a bipartite settlement dated 8.9.1983 is in question in
these appeals which arise out of the aforementioned judgment and order
passed by a Division Bench of the said court dismissing an appeal preferred
F by the Jammu & Kashmir Bank Ltd. (hereinafter referred to as 'the Bank),
affirming a judgment and order dated 15.12.1999 passed by a learned Single
Judge of the said court whereby and whereunder an award dated 4.10.1995
passed by the Central Government Industrial Tribunal-cum-Labour Court,
Chandigarh, directing the workman to be reinstated in service with the benefit
G of past service without any back wages had not been interfered with.

The workman was working as a Cashier-cum-Clerk with the Bank. He
was transferred to Kolkata on or about 2.4.1981; but he did not join the said
office or before 14.4.1981, when he was supposed to do so. On his failure
to report to Kolkata office by 14.4.1981, a notice was issued by the Bank on
H 22.6.198 l asking him to show cause as to why disciplinary proceedings
VIVEKA NAND SETHI v. CHAIRMAN, J AND K., BANK LTD. [S.B. SINHA, J.] I 099

should not be initiated agaiftst him. Taking however a lenient view, he was A
transferred to Amritsar on 6.8.1981 and then to Samba on a representation
having been made in this behalf. He later on was transferred to Amritsar
again. He joined Amritsar Branch on 29.7.1982. A leave for a period of 28
days was sought for and sanetioned in favour of the workman on an application
made therefor by him on or about 9. I0.1982. A further leave of 9 days was B
sanctioned by an order dated 17 .11.1982. Yet again he filed an application
seeking leave for one month on 19.5.1983; although he had only 25 days
accumulated leave to his credit and his leave account had already been
··deducted by 50 days' medical leave.

A bipartite settlement was entered into by and between the management C
of 58 Banks including the Appellant-Bank herein and their workmen; clause
2 whereof is as under :

"2. Voluntary Cessation of employment by the employees.

Whereas an employee has not submitted any application for leave D
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 and where there is satisfactory
evidence that he has taken up employment in India and the
management is satisfied that he has no present intention of joining E
duties, the management may at any time thereafter give a notice, to
the emplo)'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 F
evidence, where available. Unless the employee reports for duty within
30 days or unless he gives an explanation for his absence satisfying
the management 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 G
submitting a satisfactory reply, he shall be pennitted 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."

H
1100 SUPREME COURT REPORTS [2005] 3 S.C.R.

A Despite the expiry of the period of leavfl' in June· l 983, the workman
did not report back for duties, whereupon the Branch Manager, Amritsar,
infonned him by a letter dated 2. I l.1983 that he should rejoin his duties,
which was not complied with. An explanation was sought for from him by
Memorandum dated 2. I l .1983 whereby and whereunder he was asked to
show cause as to why he had been on unauthorized leave for such a long
B period. Such an explanation was to be filed by l O. l 1.l 983. He had further
been asked to join duties. Despite service of the said memo., the workman
failed to join his duties by 31.12.1983. Consequently, a show cause notice
dated 31.12.1983 served on him whereby and whereunder he was intimated
that in the event of his failure to resume his duties by 15.1.1984 he would
C be deemed to have been discharged from the services of the Bank. In reply
thereto, a telegram from one Krishan Chand Sethi was received stating that
the workman being unwell could not join his duties by 15.1.1984. He again
applied for grant of leave on medical ground on 15.2.1984. As by ~eason of
the aforementioned act on the part of the workman, the Bank felt a great deal
of inconvenience, a memorandum was served on 20.2.1984, pursuant whereto
D again he requested for sanctioning of leave. His services were dispensed with
by invoking clause (2) of the bipartite settlement stating :

"3. Consequent upon receipt of these applications from Mr. V. Sethi,
the bank had no alternative but to make confidential enquiries about
the state of his health in pursuance of which it was revealed that Mr.
E V. Sethi was keeping a good health and even attended to his family
business. This convinced the bank that Mr. Sethi was not at all
interested in the services of the bank, which prompted it to issue au
order vide No. Per/Disp/84-448 dated 17.5.1984 in accordance with
the provisions contained in Memorandum of Settlements dated
F · 8.9.1983 and Mr. Sethi was deemed to have voluntarily retired from
· the services of the bank w.e.f.8.2.1984."

-A legal notice was served upon the _Bank herein after a long time
demanding the reinstatement of the workman on or about 6.4.1989, to which
it was replied that he had been engaged intsome business at Samba and thus
G it was clear that he had no interest in cont'i~~ing in the services of the Bank.
Sometime in June 1989, a conc'iliation procee~ng was initiated by him under
the Industrial Disputes Act resulting in a reference made by the Central
Government in tenns of a Notification· dated 7.8.1990.

Inter alia, on the ground that the bank allegedly did not place on
H
--
VIVEKA NANO SETHI v. CHAIRMAN, J AND K., BANK LTD. [S.B. SINHA, J.] 110 I

records the settlement dated 8.9.1983, the impugned award was passed. A
In the writ petition filed thereagainst by the Bank it was specifically
averred :

" .. .It is important to point out here that the relevant Bipartite Settlement
is applicable to the Management of the Bank and the Staff Union of B
the Workmen is just in the form of Book and the petitioner-bank
while perusing its case has placed that book of Bi-Partite Settlement
before the respondent No. 2 but the respondent No. 2 without
considering that settlement has remained under this impression that
Bi-Partite Settlement is just a form of some document consisting of
some leaves and has not placed on record which is not true. The c
order passed by the respondent No. 2 is totally in contravention of
Bi-partite Settlement and deserves to be quashed on this score only.

A writ petition was also filed by the workman questioning non-grant of
back wages. Both the writ petitions were heard toge!her. In the said
proceedings, the workman filed an application purported to be under Section
D
17-B of the Industrial Disputes Act, which was not supported by an affidavit
as is required in law. The learned Single Judge although noticed the contentions
~ised in both the writ petitions, but dealt with the one filed by the workman
only. An appeal preferred thereagainst was also dismissed.
E
Mr. Rohit M. Alex, the learned counsel appearing on behalf of the
Bank, would submit that the Central Government Industrial Tribunal-cum-
Labour Court as also both the learned Single Judge and the Division Bench
of the High Court proceeded on a wrong premise that it was obligatory on
the part of the Bank to conduct a full fledged departmental proceeding.
According to the learned counsel the Industrial Tribunal as also the High F
Court erred in law insofar as they failed to take into consideration that the
principles of natural justice had been complied with as repeated opportunities
had been given to the workman to explain his position as also report for
duties. Strong reliance, in this behalf, has been placed on Syndicate Bank v.
General Secretary, Syndicate Bank Staff Association and Anr., [2000] 5 SCC
G
65 and Punjab and Sind Bank and Ors. v. Sakattar Singh, [2001] I SCC 214.

-- Mr. Ashok Mathur, the learned counsel appearing on behalf of the
workman, on the other hand, would contend that as a plea for extension of
leave was raised by the workman, if the same had not been proved to be
satisfactory to the management, it was obligatory on its part to conduct a H
1102 SUPREME COURT REPORTS [2005] 3 S.C.R.

A departmental proceeding against him. In any event, the learned counsel would
contend that the applicability of the bipartite settlement having not been gone
-
into by the Industrial Tribunal as also by the High Court, the matter should
be remitted to the Tribunal.

Before the Industrial Tribunal, the workman did not deny or dispute the
B existence of the bipartite settlement. He merely raised a plea that the same
was not applicable. The plea of the Bank, on the other hand, was that the
stipulations contained in the bipartite settlement were attracted ifthe employer
arrives at a satisfaction that that there were sufficient grounds for it to arrive
at a conclusion that the employee was no longer interested to continue in the
C service..

The fact that there exists a bipartite settlement entered into by and
between the Banks and their workmen is not in dispute. The workman was
all along aware about the said legal position inasmuch as, at all stages, viz.,
issuance of notices and memorandums, passing of the order of termination,
D the said settlement had been referred to.

What fell for consideration before the Industrial Tribunal was the
interpretation and/or applicability of the said settlement. The Industrial Tribunal

E
committed ail error of record insofar as it proceeded .on the basis that the said
settlement had not been proved. The settlement being an admitted document
should have been considered in its proper perspective by the Industrial
--
,

Tribunaj; Clause (2) of the said settlement is a complete code by itself. It lays
down a complete machinery as to how and in what manner the employer can
arrive at a satisfaction that the workman has no intention to join his duties.
A bare perusal of the said settlement clearly shows that it is for the employee
F concerned to submit a proper application for leave. It is not in dispute that
after the period of leave came ~ _ an end in June 1983, the workman did not
report back for duties. He also did not submit any application for grant of
further. leave on medical ground or otherwise. It is in that situation the
memorandum dated 2.11.1983 was issued and he was asked to join his duties.
It is furthennore not in dispute that despite receipt of the said memorandum,
G the workman did not join duties pursuant whereto he was served with a
notice to show cause dated 31.12.1983. He was required to resume his duties
by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a
month thereafter he filed an application for grant of leave on medical.ground.
It is not the case of the workman that any leave on medical ground or
I
H otherwise was due to him. Opportunities after opportunities indisputably had I,
-- VIVEKA NANO SETHI v. CHAIRMAN, J AND K., BANK LTD. [S.B. SINHA, J.]

been granted to the workman to explain his position but he chose not to do
so except filing applications for grant of medical leave and that too without
1103

A
annexing proper medical certificates.

The bipartite settlement is clear and unambiguous. It should be given
a literal meaning. A bare perusal of the said settlement would show that on
receipt of a notice contemplated thereunder, the workman must either : (1) B
report for duties within thirty days; (2) give his explanation for his absence
satisfying the management that he has not taken any employment or avocation;
and (3) show that he has no intention of not joining the duties. It is, thus,
only when the workman concerned does not join his duties within thirty days
or fails to file a satisfactory explanation, as referred to hereinbefore, the legal
fiction shall come into force. In the .instant case except for asking for grant
c
of medical leave, he did not submit any explanation for his absence satisfying
the management that he has not taken up any other employment or avocation
and that he has no intention of not joining his duties.

In the aforementioned fact situation we do not see any reason as to why D
the Bank could not an-ive at a satisfaction that the workman had no intention
to join his duties. It is interesting to note that though the said order was
passed on 17 .5 .1984, a representation to the Bank was made by the workman
to reconsider the said decision after a period of 3 years and 2 months by a
letter dated 31.7.1987.
E
Yet again a dispute was sought to be raised by issuance of a legal
notice on the Bank only on 6.4.1989.

Mere sending of an application for grant of leave much after the period
of leave was over as also the date of resuming duties cannot be said to be a
bona fide act on the part of the workman. The Bank, as noticed herein before, F
in response to the lawyer's notice categorically stated that the workman had
been carrying on some business elsewhere.

We cannot accept the submission of Mr. Mathur that only because on
a later date an application for grant of medical leave was filed, the same ipso
G
facto would put an embargo on the exercise of the jurisdiction of the Bank
moOL
from invoking clause (2 ) of the bipartite settlement.

lt may be true that in a case of this nature, the principles of natural
justice were required to be complied with but the same would not mean that
a full-fledged departmental proceeding was required to be initiated. A limited H
1104 SUPREME COURT REPORTS (2005] 3 S.C.R.

A enquiry as to whether the employee concerned had sufficient explanation for
not reporting to duties after the period of leave had expired or failure on his
part on being asked so to do, in our considered view, amounts to sufficient
compliance of the requirements of the principles of natural justice.

Clause (2) of the bipartite settlement raises a legal fiction, which is of
B wide import. Once the action on the part of the employer is found to be fair,
the court in view of such legal fiction would call up()n the workman to prove
contra. It will bear repetition to state that the only defence which came to be
raised by the workman was non-applicability of the bipartite settlement. The
notice dated 31.12.1983 refers to the said settlement by necessary implication,
C as on the failure of the workman to resume his duties ')y l 5. l. l 984, it was
stated that he would be deemed to have been discharged from the services of
the Bank. Yet again in terms of the memorandum dated 20.2.1984, attention
of the workman was drawn to the fact that his application for grant of leave
was neither in the prescribed form nor any medical certificate was attached
thereto. It was pointed out that the medical certificate shows that he was
D under the doctor's treatment from 22.JO.l9M3 to 22.1.1984 and as such he
should have reported for duties on 23.1._l 984 and as he failed to do so, it
gave rise to an inference that he was not interested to continue in Bank's
services. He .did not submit any satisfactory explanation nor he filed any
valid medical certificate. It was in that situation, the order dated 17 .5.1984
E was issued which again referred to the provisions contained in memorandum
of settlement dated 8.9.1983. The workman exfacie appears to have accepted
the said order as for a long period he maintained silence. Had he been
interested in the Bank's services, it was expected of him to resume his duties
and/or file proper application for grant of medical leave with a valid medical
certificate.
F ~
The principle of m · .ral justice, it is trite, is no unruly horse. When
facts are admitted, an enquiry would be an empty formality. Even the principle
of estoppei will apply. [See Dr. Gurjeewan Garewal (Mrs.) v. Dr. Dumitra
Dash (Mrs.) and Ors., [2004] 5 SCC 263]. The principles of natural justice
are required to be complied with having regard to the fact situation obtaining
G therein. It cannot be put in a straitjacket formula. It cannot be applied in a
vacuum without r~ference to the relevant facts and circumstances of the case.
[See State of Punjab v. Jagir Singh, [2004] 8 SCC 129] and Karnataka State --
Road Transport Corporation and Anr. .v. S.G. Koturappa and Anr., (2005) 2
SCALE 493.·
H
VIVEKA NAND SETHI v. CHAIRMAN, J AND K., BANK LTD. [S.B. SINHA, J.] 1105
~
The contention raised at the Bar appears to be squarely covered by two A
decisions of this Court relied upon by Mr. Alex. In Syndicate Bank .<supra)
Wadhwa, J. speaking for the Division Bench observed :

"14. Two principles emerge from the decisions: (1) principles of
natural justice and duty to act in a just, fair and reasonable manner
have to be read in the Certified Standing Orders which have statutory B
force. These can be applied by the Labour Court and the Industrial
Tribunal even to relations between the management and workman
though based on contractual obligations; and (2) where domestic
inquiry was not held or it was vitiated for 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
c
on record.

15. 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 work for a period of 90 or more consecutive
D
days. It was thereafter that the Bank served a notice on him calling
upon him to report for duty wlthin 30 days of the notice stating
therein the grounds for the Bank to come to the 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 the
Bank passed orders that Dayananda had voluntarily retired from the E
service of the Bank."

It was further held :

"18. The Bank has followed the requirements of clause 16 of the
,,.
Bipartite Settlement. It rightly held that Dayananda has voluntarily F
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 join by
the Bank. Nothing of the like has happened here. Assuming for a G

-- 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 of the notice as required in
clause 16 of the Bipartite Settlement." H
1106 SUPREME COURT REPORTS [2005] 3 S.C.R.

A The aforementioned legal position was reaffirmed by a decision of
three-Judge Bench in Punjab and Sind Bank (supra), wherein it has been
held:

" ... Under this rule the employee is given an opportunity to rejoin
duty within a stipulated time or explain his position to the satisfaction
B of the management that he has no intention of not joining duty, and
a presumption will be drawn that the employee does not require the
job anymore and will stand retired from service. Thus, there is no
punishment for misconduct but only to notice the realities of the
-
situation resulting from long absence of an employee from work with
C no satisfactory explanation thereto".

In the fact situation obtaining therein it was held that there had been
sufficient compliance for principle of natural justice.

In Syndicate Bank (supra), this Court noticed the decision of three-
D Judge Bench of this Court in D.K. Yadav v. J.MA. Industries Ltd., [1993] 3
SCC 259 whereupon the Industrial Tribunal had placed strong reliance. In
D.K. Yadav (supra) admittedly no opportunity was given to the workman and
no inquiry was held. In that situation, it was observed :

"8. The cardinal point that has to be borne in mind, in every case,
is whether the person concerned should have a reasonable opportunity
E
of presenting his case and the authority should act fairly, justly,
reasonably and impartially. It is not so much to act judicially but is
to act fairly, namely, the procedure adopted must be just, fair and
reasonable in the particular circumstances of the case. In other words
application of the principles of natural justice that no man should be
F. condemned unheard intends to prevent the authority from acting
arbitrarily affecting the rights of the concerned person."

Keeping in view the fact that we have ourselves considered the pleadings
of the parties as also the materials on records, it is not necessary to remit the
matter to the Tribunal as it wouid not serve any purpose. So far as the appeal
G preferred by the workman is concerned, it is not necessary to entertain the
same as it is evident that Section 17-B of the of the Industrial Disputes Act
cannot now be applied in view of the fact that the workman did not file an
affidavit before the learned Single Judge in support of his contentions and as
required under law.
H
VIVEKA NANO SETHI v. CHAIRMAN, J AND K., BANK LTD. [S.B. SINHA, J.J 1107

Having regard to the facts and circumstances of the case and for the A
reasons stated hereinbefore, we are of the opinion that the appeal preferred
by the Bank should be allowed and that of the workman should·be dismissed.
However, in the facts and circumstances of the case, there shall be no order
as to costs.

N.J. Bank's appeal allowed. B
Workman's appeal dismissed.