AR. Lakshmanan, J. - (1.) Leave granted.
(2.) Heard Mr. K.T.S. Tulsi, learned senior counsel appearing on behalf of the appellants and Dr. R.G. Padia, learned senior counsel appearing on behalf of the respondent.
(3.) The appellant before us is the General Manager of Vijaya Bank. The respondent was employed in the bank as a clerk. According to the bank, he abstained from duty without any leave application on 12.09.1991. On 13.05.1992, the bank issued notice directing him to report for duty in 30 days time. On 11.06.1992, the respondent reported back to duty. Within ten days, i.e., on 21.06.1992, the respondent again abstained from duty without any prior intimation. On 08.09.1992, the bank issued second notice to the respondent. A copy of the said notice was also pasted on the notice board. The said notice dt.08.09.1992 was received by the respondent on 14.09.1992. According to the respondent, when he reports for duty on 12.10.1992, he was not permitted by the bank since he has not joined duty on 08.10.1992, i.e., within 30 days from 08.09.1992. The respondent after four years raised a dispute on 01.04.1996. He protested against the termination. Thereafter, the matter was referred to the Industrial Tribunal. The Tribunal in para 12 of its order has held as under :- The record shows that the concerned workman remained absent from duty without taking leave and without submitting any application for leave from 12.11.91 to 10.6.92 and from 21.6.92 till the cessation of his employment according to the provisions of law. Even after cessation of his employment in terms of notice dated 8.9.92, he did not approach higher authorities of the bank for taking him in the services of the bank. The record shows that he for the first time moved an application to the General Manager of the bank on 1.4.96 without approaching the higher authorities against the order treating him to have retired from the service which was passed by the General Manger of the Bank on 28.11.92. This shows that the concerned workman was gainfully employed some where and was earning money from other sources and that is why he kept mum for four years without approaching higher authorities for getting job again in the bank. Sri Hedge M.M.1 clearly stated on oath that the brother of the concerned workman was carrying a business of share broker in a shop in front of Jeoni Mandi Branch of the bank at Agra and the concerned workman also doing the same business and profession with his brother and that is why he was not interested in joining the services of the bank. His evidence on this point goes uncontroverted. The concerned workman did not suggest to him that he was not carrying on profession of share broker and the shop of his brother was not in front of the branch of the bank in which he was carrying on business of share broker. The evidence of M.W.1 on this point appears to be correct and it supports the contention of the management that the concerned workman was gainfully employed in other profession and business and that is why he had no intention to join duties in the bank and remained absent for several months without moving any application for leave and kept mum for four years even after cessation of his employment. In these circumstances, the case of the management appears to be correct that the concerned workman was gainfully employed in other trade or business and had no intention to join duties of the bank, and the decision of the bank that he had relinquished and abandoned the service of the bank appears to be fully justified. In view of the above finding, the Tribunal held that there is no illegality on the part of the bank in taking action against the respondent-workman. The Tribunal further held that the action of the Management in treating the concerned workman to have voluntarily retired from service of the bank with effect from 08.10.1992 was wholly justified and lawful. The reference was answered by the Tribunal accordingly. Aggrieved against the order passed by the Tribunal, the respondent filed a Writ Petition No.24370/2001 in the High Court of Allahabad. The said petition was allowed on 18.03.2005. ;