S.Pal.J. - (1.) Instant appeal arises out of a judgment and order dated 27th March, 2002 passed by a learned singe Judge in W.P. No. 948 of 2000 affirming the award dated 20th December, 1999 passed by the Central Government Industrial Tribunal at Calcutta in Tribunal Reference Case No. 14/1991.
(2.) The facts as stated by the appellant are that the respondent No. 3 Chhabi Ghosh ("respondent" for short) was initially appointed and, thereafter, confirmed as a clerical staff on 26th July, 1969 by the then Mercantile Bank Ltd. now known as the Hongkong and Shanghai Banking Corporation. Pursuant to an agreement dated 16th June, 1978 entered into by the Mercantile Bank Ltd. and the said respondent. The said respondent was promoted as staff officer, Grade-1 (Junior). The two grades of staff officers that is Grade-I (Junior) and Grade -II (Senior) were merged with effect from 1st of July, 1984, thereby bestowing the powers and duties exercised by Grade II staff officers on Grade-1 staff officers also. The said respondent was in the grade of 1 300-7 725(basic) and was drawing at the rate of Rs. 3419/- per month as basic salary besides other allowances, jt has been stated that from 1st November, 1977 to 30th November, 1984 the said respondent principally and substantially discharged duties and functions which were supervisory cum administrative cum managerial in nature and had head clerks, special assistants, head cashier, clerks/typists, clerk cum cashier, accounting machine operators, peons, daftaries, cash peons, sweepers under his control. The respondent was vested with the power and authority to sign on behalf of the bank, to regularize and check transactions and to channelise fundamental transaction postings, to approve the daily cash balance reconciled by the employees subordinate to him, had the power to authenticate savings account customer ledger cards, the authority of approving the customer account opening, to look after the current account customer ledger cards, the authority to authenticate/approve the vouchers prepared by the clerks; to approve the postings in various suspense account signing an approving inward and outward remittances of local and foreign currencies, was empowered to sign demand drafts. He was authorised to sign the vouchers pertaining to bank pay order, had the power to sign foreign inward remittance certificate, authority to sign various schedules for collection of bills, to look after and sign ledger sheet, central registrars, had the authority to sign vouchers instructing another bank to debit an account, to sign schedules to various banks for collection of bill proceeds, to sign schedules for collection of foreign bills drawn on branches of foreign banks, to sign various customer account debit vouchers, to debit customer account and realize commission charges for the services rendered to customer, to sign outward bills for collection voucher, authority to approve sundry remittances covered in Indian rupee vouchers made for the preparation of demand drafts on the branches of the State Bank of India authority, to authenticate drawing payable account vouchers and to sign note purchase account voucher authorizing purchase of foreign currency note to supervise the Central customer ledger cards and stocks, had the custody and control of accounting machine keys, account opening forms to authorize various vouchers prepared by the clerical staff by initialing and validating and/ or passing entries made by the clerical staff, to cancel and rectify errors committed by the clerical staff in any document and register, had the authority to direct the staff working under him and to supervise the job assign to them, in case of emergency to take delivery of duplicate keys of a sub branch of the bank from the main office safe custody and was the custodian of strong room keys for vaults which revealed that the said respondent had the administrative cum supervisory cum managerial power.
(3.) It had been stated that as per clause 7 of the agreement dated 16th June, 1978 in order to enjoy leave prior sanction should have to be obtained in writing. On and from 16th August, 1984 the said respondent went on leave for a period of 14 days. On 1st September, 1984 he was supposed to report for duty which he did not. By letter dated 6th September, 1984 he was requested to resume duties. Still he did not. On 10th September, 1984 in response to a letter dated 31st August, 1984 the bank intimated that it was not possible to extend the leave indefinitely. However, as a special case extension was granted upto 16th September, 1984. The said respondent, by letter dated 19th October, 1984 was intimated that in spite pf the expiry of the leave he had not turned up. Thereafter, by a letter dated 14th Novermber, 1984 final opportunity was granted to report for duty by 30th November, 1984. Since the petitioner failed to report for duty, accordingly, the bank was left with no other alternative and by a letter dated 1st December, 1984 had to determine, with immediate effect the contract of employment as per clause 9 of the contract of employment dated 16th June, 1978. According to the appellant, the contract was determined after affording adequate and reasonable opportunity. The said respondent raised a dispute with the Labour Department, Government of India, under the provisions of Industrial Disputes Act, 1947( for short "the Act"). The Conciliation Officer held the said respondent as a workman which was challenged in the writ proceedings. By an order dated 17th January, 1986 the said order was set aside and the Government of India was granted liberty to act in accordance with law. Thereafter, the Central Government intimated that prima facie no ground existed for a reference as it appeared that the said respondent was not a workman under the provisions of the Act. The said respondent by filing a writ petition challenged the same. The writ petition was allowed. On appeal the Central Government was directed to refer the issue as to whether the said respondent was a workman or not.;