V.K.Shukla, J. - (1.) Petitioner had been performing and discharging duties as clerk and was posted at Jeevani Mandi, Agra Branch of the Bank. The petitioner remained absent from duty without leave since 12. 11. 1991. He was asked vide notice dated 13. 5. 1992 by the respondent-Bank to join the services within 30 days from the date of issuance of the said notice. The petitioner re ported duty on 11. 6:1992 within 30 days. The petitioner again remained absent without leave from the Bank w. e. f. 21. 6. 1992. A notice dated 8. 9. 1992 was issued to the petitioner, directing him to report on duty within 30 days from the date pf publication of the notice and submit an explanation for unauthorized absence, a copy of which has been filed as Annexure 1 to the writ petition. This notice is alleged to have been published on the Notice board of the Bank on 9. 9. 1992. The said notice was served on the petitioner on 14. 9. 1992 by a Registered post. The petitioner reported on duty well within the period of 30 days from 14. 9. 1992. In stead of permitting the petitioner to join the duty, the Branch Manager issued a communication dated 12. 10. 19921othepetitionermentioningthereinthat, since the joining report of the petitioner was beyond 30 days from the date of publica tion of its notice on the Notice Board of the Bank, he would not be allowed to join and also the reason of his absence was unacceptable, a copy of which has been filed as Annexure 3 to the writ petition. Subsequently, vide order dated 28,11. 1992 passed by the General Manager of the respondent-Bank, the petitioner deemed to have voluntarily retired from the service of the Bank, in view of the Clause 17 of the Vth Bipartite Settlement dated 10. 4. 1989.
(2.) THE petitioner being aggrieved by the order dated 28. 11. 1992 passed by the General Manager, Vijaya Bank, Bangalore (Annexure 5 to the writ petition) raised an industrial dispute before the Assistant Labour Commissioner (Central) under the Central Industrial Dispute Act, 1947. Since conciliation proceedings failed, the Central Government vide its order dated 25. 1. 1990 made a reference under Section 10 of the Industrial Disputes Act for adjudication of the dispute, as to whether the termination of service of the petitioner wife order dated 28. 11. 1992 w. e. f. 8. 10. 1992 was legal and justified, and if not, to what relief the petitioner was entitled to. THE Central Industrial Tribunal-cum-Labour Court, Kanpur after hear ing the parties to the dispute passed its award dated 23. 4. 2001, which was pub lished on 27. 4. 2001. Said award had been subject matter of challenge in present writ petition and this Court on 18th March, 2005 concluded that the award dated 23. 4. 2001 as published on 27. 4. 2001 was unsustainable and the same was quashed and writ petition was allowed. After the said writ petition had been allowed, directives were issued for reinstatement of petitioner on the post held by him, with continuity in service and further directives were issued that the petitioner would be entitled to other consequential benefits in accordance with law. Against the said judgment of this Court, rendered in present writ petition, Special Leave to Appeal was filed before Hon'ble Apex Court and the same was numbered as Civil Appeal No. 3676 of 2006, General Manager, Vijaya Bank and another v. Pramod Kumar Gupta, reported in 2006 (4) ESC 426 (SG), and therein, as far as order of reinstatement is concerned, qua the same no interference was made by Hon'ble Apex Court, but as back wages had been awarded as a natural consequences without considering other aspects of the matter, matter has been remanded back to be decided afresh limited to the question of back wages. Op erative portion of the order passed by Hon'ble Apex Court is being quoted below : "in our opinion, the period of 30 days has to be reckoned only from the date of service of the notice namely, on 14. 9. 1992. If that date is taken into consideration, the respondent has joined the duty well within 30 days namely, on 12. 10. 1992. Dr. Padia further submitted that the Tribunal was wrongly persuaded by the oral testimony of the witness on the basis of which, lacked any basis in the pleadings or prove any form of document. According to him, the respon dent was not gainfully employed and that the said finding is totally perverse. It submitted that the bank only prevented the respondent from joining duty and that the respondent is not at fault and therefore, he is entitled to full back wages. We, therefore, remit the matter to the High Court to consider the ques tion of payment of back wages for the period in question. We request the High Court to consider the matter afresh on the question of back wages only. The appellant Bank is also free to hold any departmental enquiry against the respondent workman for his absence from duty during the relevant period. Since the matter is remitted to the High Court on the question of back wages, only, the respondent will not be entitled for payment of any back wages during the period in question which will depend upon the ultimate order that may be passed by the High Court. The order passed by the High Court ordering reinstatement shall stand. It is submitted by Dr. R. G. Padia, learned senior counsel that the respon dent workman has availed some loan from the bank for the purpose of pur chasing a residential house. It is also stated that he has committed default in payment of instalments of the said loan to the bank. Since the matter is remitted back to the High Court, he requested this court to direct the bank not to sell the residential house for non -payment of the instalments of the loan availed by him for the purpose of residential house till the High Court takes final decision. The request is accepted."
(3.) PURSUANT to order passed by Hon'ble Apex Court, present writ petition has again been taken up for consideration of grant of back wages. Sri Manu Khare, learned counsel appearing for the petitioner, contended with vehemence that petitioner was not at all gainfully employed and as he was subjected to arbitrary action of respondents and said finding of fact has been upheld by Hon'ble Apex Court, as such full back wages be accorded to petitioner as petitioner was not at all fault as per the finding recorded and affirmed.;