Read Time: 09 minutes

Synopsis

The Supreme Court has said a person aggrieved by the order of transfer cannot sit at home without availing any legal remedy and decide on his own that the order is illegal or erroneous and he will not comply with it. 

“His idea seemed to be to remain in practice of law and at the same time enjoy payment of subsistence allowance without working. The language of the letter also clearly suggests that the workman was legally trained. His over-smartness is evident further from the contents of his letter where he claimed that as a consequence of non-payment of subsistence allowance, he had to pass his life on open road and his address for communication had been lost, thus making sure that he could take a plea that none of the communications from the Bank were received by him," the bench said.

"If the workman had any grievance, he could have availed of his remedy available against the same; otherwise, he was duty-bound to comply with the same. Failure to avail of any remedy also would mean that he had accepted the order and was duty-bound to comply with the same," a bench of Justices Hima Kohli and Rajesh Bindal said.

At a later stage, he could not take a plea that the order being erroneous, no consequence would follow for its non-compliance, the bench added.

The apex court dismissed an appeal filed by U P Singh against the Allahabad High Court's division bench order which upheld the single judge's order that had set aside the Central Government's Industrial Tribunal-cum-Labour Court's direction to reinstate the appellant with full back wages along with interest and consequential benefits.

The conduct of the workman like going on hunger strike, and writing letters without giving his address itself was sufficient to non-suit him as has rightly been done, the bench said. 

"His argument that being on suspension, he could not have been treated to have been voluntarily retired as per the deeming provision, is merely to be noticed and rejected, as during his suspension also, the relationship of master and servant does not come to an end. All the rules and regulations governing the post continue to apply," the bench said. 

"Merely because the Bank had stopped paying subsistence allowance to the workman does not mean that the workman was no more an employee of the Bank. The action was taken by the Bank only to ensure that somehow or the other, the workman joined his duty. However, it seems that he had some other scheme in his mind," the bench added.

Having been appointed as clerk-cum-cashier in 1977, the appellant was transferred in August, 1978. In 1982, he was suspended on account of his disorderly behaviour as he failed to join duty.

In 1984, he was deemed to have voluntarily retired from service.

"The fact which remains undisputed is that the workman never challenged the order of punishment or his transfer before the competent authority or the Court and the said order became final. He was only aggrieved with his posting to the Branch Office, Bhagwantnagar, Unnao. Instead of joining his new place of posting, he continued writing letters," the bench said. 

The court noted in terms of Clause XVI of the Bipartite Agreement, in case a workman absents from work consecutively for 90 days or more, without submitting any application for leave, the Bank is entitled, after 30 days’ notice, to conclude that the employee has no intention to join duty and is deemed to have voluntarily retired on expiry of the notice period of 30 days. 

"It is evident from the communication dated 01.02.1984 addressed by the workman to the Bank that he was in the knowledge of all the developments and further, being a Law Graduate, he very well knew the consequences of failure to challenge an order and not complying with the same. He would also be aware of the Bipartite Agreement and the consequences of his absence from duty," the bench said.

In his letter, the bench said the workman had mentioned that from January 1984, his subsistence allowance had not been paid resulting in mental torture to him. 

The court also noted the Bank was magnanimous enough to have issued a final notice to the workman on October 05, 1984, granting him 30 days’ time to report for duty. "This is also acknowledged by the workman. But for reasons best known to him he failed to comply with the same," it said.