JUDGMENT
Ranjan Gogoi, J.
1. An award dated 25.9.1998/passed by the learned Presiding Officer, Industrial Tribunal, Guwahati in a reference registered under Section 10 of the Industrial Disputes Act has been put to challenge by the petitioner in the present writ application.
2. The facts in brief may be noted at the outset.
The petitioner joined the respondent-Bank as Cashier-cum-Clerk on 9.4.1983 and she was posted at Imphal. While in service at Imphal, she married an Army Officer in the year 1986. The husband of the petitioner was transferred to Bareilly and, therefore, the petitioner had put in a request for the transfer to the same place. Though there was a Branch of the respondent-Bank at Bareilly, according to the petitioner the concerned authority did not accede to her request for transfer to Bareilly and instead transferred the petitioner to Silchar. As the husband of the petitioner along with her minor son was in Bareilly and her son was not keeping well from time to time, the petitioner applied for leave at different points of time in the years 1990, 1991, 1992 and 1993. Leave was not granted to her as according to the Bank, the petitioner did not have any leave to her credit. In such circumstances, the Bank authority insisted that the petitioner should join her duties at Silchar. As she was unable to do so on account of compelling reasons, the Bank after issuing a notice asking her to resume duties within 30 days, by order dated 19.4.1993 struck off the name of the petitioner from the roll of its employees by taking the petitioner to have voluntarily retired from service as per Clause 17 of the 5th Bipartite Settlement dated 10.4.1989. The petitioner having raised objections with regard to the validity of the aforesaid action taken by the Bank, the Government of India; by order dated 8.12.1994 referred the following question for adjudication to the Industrial Tribunal at Guwahati.
Whether the action of the management of (uco bank) United Bank of India, Silchar vide corrigendum dated 5.9.1995, in terminating the services of Smti. Meena Chakravarty. Clerk, by treating her as having voluntarily retired from service w.e.f. 26.4.1993 is legal and justified? If not, to what relief is the said workman entitled?
3. The learned Industrial Tribunal at Guwahati on the basis of the reference made under Section 10 of the Industrial Disputes Act, registered a proceeding numbered as Reference Case No. 4(C) of 1995. Both the sides filed their respective written statements and adduced elaborate and documentary evidence before the learned Tribunal. On due consideration of the cases of both the sides, the learned Tribunal by its award dated 25.9.1998 took the view that as the cessation of service of the petitioner did not have the requisite element of voluntariness, Clause 17 of the Bipartite Settlement dated 10.4.1989 could not have been applied by the management and, therefore, the discharge/termination of the petitioner was not legally valid. The learned Tribunal, it must be noticed at this stage, while recording the aforesaid conclusion, took the view that the petitioner was absent for a, total of 880 days during the period commencing from 1st January, 1990 up to 9.3.1993 and as the same was without any justification, the absence of the petitioner from duties during the aforesaid period was unauthorised for which the petitioner should be proceeded against by way of a disciplinary proceeding. On the basis of the aforesaid conclusion reached by the learned Tribunal, notwithstanding the view taken by the learned Tribunal with regard to the validity of the discharge of the petitioner from service, the learned Tribunal answered the second part of the question referred to it by holding that the petitioner would be entitled, to reinstatement in service without any back wages and without any consequential service benefits. Aggrieved, the present writ application has been filed.
4. I have heard Shri N. Choudhury, learned Counsel appearing for the writ petitioner and Ms. R. Kar, learned Counsel appearing for the respondent-Bank.
5. Shri Choudhury, learned Counsel for the petitioner in the course of his arguments has vehemently contended that the learned Tribunal having found the discharge/termination of the petitioner to be unjustified, the relief of reinstatement with back wages and all consequential service benefits must be understood by the Court to be a natural consequence to which the petitioner would be entitled to. Shri Choudhury argued that in so far as the findings and conclusion of the learned Tribunal on the issue of the validity of the discharge/termination of the petitioner is concerned no proceeding has been initiated by the Bank as against the conclusion reached by the learned Tribunal. It is, therefore, argued that the Bank must he deemed to have accepted the correctness of the conclusion reached by the learned Tribunal with regard to the invalidity of the petitioner’s discharge/termination. Consequently, it is argued that as the discharge/termination of the petitioner has been found to be unjustified, the relief of reinstatement with back wages and all service benefits ought to, have been granted by the learned Tribunal. On the aforesaid basis, Shri Choudhury has argued that there is an error apparent on the face of record which would justify the interference of this Court with the second part of the award dated 25.9.1998.
6. Controverting the submissions advanced on behalf of the petitioner, the learned Counsel for the respondent-Bank has contended that what was found by the learned Tribunal in the present case is that the absence of the petitioner from duties was unjustified and, therefore, unauthorised for which the petitioner should be proceeded departmentally. It is in the above context that the finding of the learned Tribunal regarding the voluntary cessation of service attracting Clause 17 of the Bipartite agreement dated 10.4.1989 must be understood. As the petitioner was held by the learned Tribunal to be unauthorisedely absent during the period in question, the relief of back wages and consequential service benefits cannot be legal by conferred on the petitioner.
7. The rival submissions advanced on behalf of the parties have been duly considered by the Court. While it is correct that the discharge/termination of the petitioner on the basis of a deemed voluntary cessation of service was invalidated by the learned Tribunal thereby answering the first part of the question in favour of the petitioner what cannot be lost sight of is the further finding recorded by the learned Tribunal that though there was no Voluntary cessation of service on the part of the petitioner, the absence of the petitioner from duties during the relevant period was unauthorized for which there ought to be a disciplinary proceeding against the petitioner. In this regard, the learned Tribunal, on an elaborate consideration of. facts and circumstances of the case, recorded the finding that the petitioner though had applied for leave had chosen to remain absent from duties without any leave being granted and further, that no such leave could have been granted as the petitioner did not have any tea yip to her credit. It is in these circumstances, i.e., as the petitioner applied for leave and had not intended to voluntarily give up service that learned Tribunal took the view that the petitioner could not have been deemed to have voluntarily retired from service so as to permit the bank management to invoke Clause 17 of the Bipartite Settlement dated 10.4.1989. The context in which the learned Tribunal had arrived at its findings with regard to the invalidity of the discharge/termination of the petitioner and further the finding that me petitioner was unauthorisedly absent from duties for as long as a period of 880 days thereby inviting a disciplinary proceeding against her cannot be lost sight of. As Clause 17 of the Bipartite Agreement dated 10.4.1989 did not apply and the petitioner could not have been deemed to have voluntarily retired from service, the learned Tribunal, answered the first part of the question referred in the affirmative holding the discharge/termination of the petitioner to be unjustified. However, on the view taken, and the conclusion reached that the petitioner was unauthorisedly absent, the learned Tribunal could not have the awarded any back wages or consequential service benefits to the petitioner. The relief of reinstatement with back wages and consequential service benefits was, therefore, granted. As the petitioner was found to be unauthorisedly absent from duties for a period of 880 days during a period of about 3 years, the relief granted, i.e., the reinstatement without back wages and consequential service benefits can by no stretch of reasoning be understood to be unjustified so as to warrant interference.
8. There is yet another reason as to why this Court is of the view that the present challenge against the relief granted by the impugned award must be repelled by the Court. The pleadings of the parties in the form of the affidavits filed would go to show that during the pendency of the writ petition, the petitioner has been proceeded against departmentally and she has been dismissed from service. The dismissal of the petitioner from service is not an issue before the Court as the petitioner, as would be evident from the reply affidavit, has chosen to avail her legal rights against the dismissal order under the Industrial Law. In such circumstances, any grant of relief of back wage’s or consequential service benefits to the petitioner would have its own impact on the validity of the dismissal of the petitioner which is not an issue before the Court in the present proceeding.
9. For all these aforesaid reasons, I am of the view that the relief sought for in the present writ application ought not to be granted. The writ application is accordingly dismissed and the award dated is 25.9.1988 is affirmed, However, having regard to the facts and circumstances of the case, the parties shall bear their own costs.