JUDGMENT
S. Nainar Sundaram, C.J.
1. The appellant ousted the respondent from service, invoking Clause XVI of the Fourth Bipartite Settlement dated 17-9-1984. The said Clause reads as follows:
Voluntary Cessation of Employment by the Employees:
In supersession of Clause 2 of the Settlement dated 8th September, 1983 the following shall apply:
Where an employee has not submitted any application for leave and absents himself from work for a period of 90 days 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 employee’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 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 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.
In case of an employee who has gone abroad, and has not submitted any application for leave and absents himself for a period of 150 or more consecutive days without or beyond any leave to his credit or absents himself for ISO or more consecutive days beyond the period of leave originally sanctioned or subsequently extended and where the management has reasons to believe that he has no intention of joining duties, the management may at any time thereafter give a notice in the employee’s last known address calling upon the employee to report for duty within 30 days of the notice. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the management, 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.
The first part of the above clause alone is relevant for the purpose of our case. The order passed in this behalf is dated 24-4-1990 and the wordings of the said order are in the following terms:
xxx xxx xxx
Further to our letter No. MRO/PER/484/90 dated 14-3-1990 sent to you under Registered A.D. you have neither submitted your explanation for your unauthorised absence nor reported for duty within the stirulared period of 30 days. In view of this and having regard to Clause XVI of Fourth Bipartite Settlement dated 17th September, 1984, it is presumed that you are no more interested in the service of the Bank and have voluntarily retired from the service of the Bank of your own volition. We have treated you as such xxx
The respondent impugned the aforesaid order, by preferring Special Civil Application No. 2048 of 1991 and the learned single Judge referred to the above Clause of the Fourth Bipartite Settlement and found that there, had been a denial of opportunity to the respondent violating the principles of Natural Justice and as a result, the learned single Judge quashed the order dated 24-4-1990, Annexure ‘B’ to the Special Civil Application and passed orders as follows:
xxx For the reasons stated above, the termination order requires to be quashed and set aside. Hence the order dated 24-4-1990 Annexure ‘B’ is hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service within two weeks from the date of receipt of writ of this order with continuity of service right from the date of his termination order dated 24-4-1990 with all consequential benefits except that for the misconduct, the petitioner will not be entitled to back wages. After reinstatement of the petitioner in service, it would be open for the respondents to initiate appropriate proceedings against the petitioner for the said misconduct under Clauses (S) of the Service Conditions of the Bank Employees, xxx
This Letters Patent Appeal is directed against the order of the learned single Judge.
2. The endeavour of Mr. K.N. Raval, Learned Counsel for the appellant, was to demonstrate that there had been satisfaction of Clause XVI of the Fourth Bipartite Settlement and hence, mere could not be complaint of violation of the same, on the basis of which violation alone, the respondent could covet reinduction into service. That there had been an undue absence from duty on the part of the respondent is not in a disputed sphere. On 14-6-1989, the appellant wrote to the respondents as follows:
xxx We refer to a copy of a letter No. VJP/76 89 dated 12-6-1989 addressed to you on the above subject.
You have been remaining absent from duty since 24-4-1989 without intimation or prior sanction. Please note that you were marked absent from duty for the period of your unauthorised absence from duty from 24-4-1989 onwards for which you will not be eligible for wages.
You are hereby called upon to resume duty immediately and submit your explanation in writing for your such absence to us with a copy to trie branch, xxx
It is not claimed that the letter dated 14-6-1989 would fit in with Clause XVI of the Fourth Bipartite Settlement. However, it is claimed that on 14th March, 1990, the appellant addressed a communication to the respondent, which, in terms, may satisfy Clause XVI of the Fourth Bipartite Settlement. A copy of the communication stated to have been sent by the appellant has been, now, furnished to us and the terms thereof run as follows:
xxxx You have been remaining absent from duty since 24-4-1989. You have neither intimated the Bank the reasons for your absence from 24-4-1989 nor submitted any request for leave.
You are therefore advised to report for duty within 30 days from the receipt of this notice.
In case you do not report for duty within the stipulated time or submit a satisfactory explanation to the Bank for your unauthorised absence, you would be deemed to have voluntarily retired from the service of the Bank from the date of expiry of the notice in terms of Clause XVI of IVth Bipartite Settlement dated 17-9-1984.
It is admitted by Mr. K.N. Raval, Learned Counsel for the appellant, that this communication dated 14th March, 1980 satisfies Clause XVI of the Fourth Bipartite Settlement. Then the question is as to whether this communication dated 14th March, 1990 did reach the respondent and he lost an opportunity to make his say and thereby enabled the appellant to invoke Clause XVI of the Fourth Bipartite Settlement and oust the respondent out of service on the ground that he must be deemed to have voluntarily retired from the services of the appellant. Clause XVI of the Fourth Bipartite Settlement contemplates the management giving a notice to the employee in the stated contingencies and calling upon the employee to report for duty within 30 days of the notice. On receipt of the notice the employee has to react. He must either report or give an explanation. Reaction on the part of the employee is feasible only when the notice reaches. Lack of reaction on his part after be gets the notice, will entail the grave consequence of cessation of employment.
3. In the reply filed by the appellant to the Special Civil Application preferred by the respondent, there is a reference to a letter sent by registered post with acknowledgement due in the following terms:
xxx In view of the above position the respondent Bank deputed Officers on 2 occasion to the residence of the petitioner as per the address given by the petitioner to the respondent Bank. But the neighbour of the petitioner informed the Officers of the Bank that the petitioner is not residing at the address given by him. Even the Registered AD letter addressed to him and advising him to report for duties within 30 days from the receipt of the said letter returned by the postal authority with a remark “person not found” on 3 occasions, i.e. 17-3-1990, 19-3-1990 & 20-3-1990. xxx
It is the say of the Learned Counsel for the appellant that the letter referred to in the above passage is the letter dated 14th March, 1990. But, even as per the averments in the above passage, the letter did not in fact reach the respondent and it had been returned by the postal authorities. The Learned Counsel for the appellant would further submit that the letter dated 14th March, 1990, in fact, has been referred to in the impugned order and there had been no denial of having received the said letter by the petitioner in his petition. In answer, Mr. P.B. Majmudar, Learned Counsel for the respondent, submits that in the petition, it has been specifically averred that me only letter received by the respondent is dated 14th June, 1989, which, obviously, did not fit in with Clause XVI of the Fourth Bipartite Settlement and it is not possible to infer or deduce by surmises that any letter dated 14th March, 1990, as now produced, should have reached the respondent.
4. In our opinion, Clause XVI of the Fourth Bipartite Settlement has got a vital place in the service parlance of the appellant, because it contemplates a voluntary cessation of employment by the employees and the expression ‘cessation’, in substance and effect stands on the same footing as “removal from service” and in that context we cannot belittle the significance and vigour of the said provision. Hence, strict adherence to and compliance with the said provision must be held to be a mandate so that the consequences of the working of the provision could legitimately ensue. On this particular aspect, it is not possible for the Court to indulge in deductions and inferences by surmises and the issuance of the notice and the service thereof must be positively established before the Court, before it is called upon to pronounce that the employee, in fact, has ceased to be in service within the meaning of Clause XVI of Fourth Bipartite Settlement. On the facts of the case we are convinced that there had been no satisfaction of Clause XVI of the Fourth Bipartite Settlement. It is true that the learned single Judge has referred to pronouncements rendered in the context of Article 311 of the Constitution of India. But, the reference to the said pronouncements must be held to be only for understanding the implications of Clause XVI of the Fourth Bipartite Settlement and the consequences of violating it and that is how we construe the whole reasoning of the learned single Judge. In short the principles o Natural Justice, adumbrated in Clause XVI of the Fourth Bipartite Settlemen stood violated.
The result is, this Letters Patent Appeal fails and the same is dismissed with no order as to costs. Notice is discharged.