Case Note & Summary
The case involves a writ petition filed by The Goa Urban Co-op. Bank Ltd. challenging an award dated 30.08.2003 passed by the Industrial Tribunal, which held that the termination of respondent no. 1, Mr. Rui A. E. Ferreira, was illegal, arbitrary, and unjustified. The Tribunal ordered reinstatement with full back wages and continuity of service. Respondent no. 1 was employed as a Clerk from 09.03.1981, confirmed on 01.02.1983, and later promoted to Junior Officer, working in various departments including audit, recovery, savings, and cash credit. On 29.05.2000, he was transferred to the Vasco branch, which he challenged before the Registrar of Co-operative Societies, the Co-operative Tribunal, and the High Court, all of which upheld the transfer. During the pendency of a Letters Patent Appeal, the bank terminated his services on 29.12.2000 with effect from 23.09.2000, invoking a settlement clause that provided an employee absent beyond sanctioned leave ceases to be an employee unless he returns within eight days with good cause. The respondent had not reported to the transferred post and claimed medical leave. The bank argued that he was not a 'workman' under the Industrial Disputes Act, 1947, as he performed supervisory and managerial functions, and that his absence without sanctioned leave justified automatic cessation of employment. The respondent contended that he had medical leave available and that his sickness justified absence. The High Court heard extensive arguments from both sides on the issues of workman status, validity of termination under the settlement clause, and the appropriateness of full back wages. However, the transcript of the oral judgment ends abruptly before the court's final decision is recorded, leaving the outcome unresolved in the provided text.
Issue of Consideration
Whether the reference under the Industrial Disputes Act was competent given the employee's status as a 'workman'; whether the termination based on a settlement clause was legal and justified; and whether full back wages and reinstatement were appropriate.
Case Details
2014 LawText (BOM) (07) 120
Writ Petition No. 40 of 2004
Mr. G. Sardessai, Mr. V. Palekar, Mr. Ryan Da Piedade Menezes
The Goa Urban Co-op. Bank Ltd.
Mr. Rui A. E. Ferreira, Industrial Tribunal
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Nature of Litigation
Writ Petition under Article 226 of the Constitution of India challenging an award of the Industrial Tribunal.
Remedy Sought
Petitioner (Employer Bank) seeks to quash and set aside the Industrial Tribunal award dated 30.08.2003.
Filing Reason
The Industrial Tribunal held termination of respondent no.1 illegal and ordered reinstatement with full back wages, which the petitioner challenges as erroneous.
Previous Decisions
The Industrial Tribunal by award dated 30.08.2003 set aside termination and ordered reinstatement with back wages. Earlier, the transfer order was upheld by the Registrar of Co-operative Societies on 11.08.2000, Co-operative Tribunal on 31.04.2000 (sic), High Court Single Judge on 05.10.2000; LPA became infructuous due to termination.
Issues
Whether the reference under Industrial Disputes Act was competent given respondent no.1's status as 'workman' under Section 2(s)?
Whether the termination order dated 29.12.2000 based on settlement clause was illegal and arbitrary?
Whether full back wages and reinstatement were justified?
Submissions/Arguments
Petitioner argued that respondent no.1 was not a workman as he performed supervisory and managerial functions excluded under Section 2(s) of the Industrial Disputes Act, 1947, and that the burden of proof lay on the employee, which he failed to discharge as his own admissions proved supervisory roles.
Petitioner contended termination was valid under settlement clause (III)(d) because respondent no.1 did not report to the transferred post, remained absent without sanctioned leave, failed to appear before the medical board, and thus ceased to be an employee automatically.
Petitioner argued that full back wages were not justified as the respondent resorted to devices to avoid transfer, absence without leave constituted misconduct, and the bank had lost confidence, making reinstatement with back wages inappropriate.
Respondent no.1, through the Tribunal's findings and implied arguments, asserted that he was a workman, his duties were not supervisory, and that he had accumulated medical leave and valid sickness that justified absence, thus termination was arbitrary and in violation of principles of natural justice.
Judgment Excerpts
the order dated 29.12.2000 terminating the services of the respondent no.1 with effect from 23.09.2000 were illegal, arbitrary and unjustified.
the reason for issuing the order of termination was in terms of the settlement arrived at with the workmen of the petitioner to which the respondent no.1 was also a party wherein clause (III)(d) therein inter-alia provides that the employee remaining absent on duty beyond the period of leave already sanctioned for him shall cease to be an employee of the bank unless he returns within eight days after expiry of such leave and furnishes good cause
the respondent no.1 was not a workman within the provisions of the Industrial Disputes Act.
as the respondent no.1 has not shown any justification for his absence from duty nor cogent evidence produced to establish that he was entitled for medical leave, the question of justifying his absent as held in the impugned award is erroneous, illegal and untenable.
Procedural History
Respondent no.1 appointed as Clerk on 09.03.1981 and confirmed on 01.02.1983. Promoted to Junior Officer and posted in various departments. Transferred to Vasco on 29.05.2000. Challenged transfer before Registrar of Co-operative Societies; application rejected on 11.08.2000. Appeal to Co-operative Tribunal disposed on 31.04.2000 upholding the order. High Court upheld transfer on 05.10.2000. LPA No. 18 of 2000 filed; liberty given to make representation. While representation pending, termination order passed on 29.12.2000 w.e.f. 23.09.2000 under settlement clause. LPA became infructuous on 08.01.2001. Reference sought under Industrial Disputes Act; Government referred dispute on 31.05.2001. Industrial Tribunal passed award on 30.08.2003 setting aside termination, ordering reinstatement with full back wages and continuity. Petitioner filed Writ Petition No. 40 of 2004 challenging the award. Court heard arguments on 21.07.2014; transcript ends before decision.
Acts & Sections
- Industrial Disputes Act, 1947: Section 2(s), Section 10
- Maharashtra Co-operative Societies Act, 1960:
