Kerala High Court
Deputy General Manager vs S.Shankar on 2 February, 2016
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 2ND DAY OF FEBRUARY 2016/13TH MAGHA, 1937
WP(C).No. 36554 of 2008 (B)
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PETITIONER:
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DEPUTY GENERAL MANAGER,
STATE BANK OF TRAVANCORE,
ZONAL OFFICE, PANAMPILLY NAGAR
KOCHI-, 682036.
BY ADV. SRI.P.RAMAKRISHNAN
RESPONDENT(S):
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1. S.SHANKAR, NO.9, CHANDRA ILLOM,
ALWAR KURICHI, TIRUNELVELI DISTRICT, TAMIL NADU.
2. THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
CUM LABOUR COURT, ERNAKULAM.
R,R1 BY ADV. SRI.H.B.SHENOY
R,R1 BY ADV. SRI.ASHOK B.SHENOY
R,R1 BY ADV. SMT.LAKSHMI B.SHENOY
R,R1 BY ADV. SRI.ABU MATHEW
R,R1 BY ADV. SRI.SOBHAN GEORGE
R,R1 BY ADV. SRI.THOMAS P.MAKIL
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-01-2016, THE COURT ON 02-02-2016 DELIVERED THE
FOLLOWING:
WP(C).No. 36554 of 2008 (B)
A P P E N D I X
PETITIONER'S EXHIBITS
EXT.P1: TRUE COPY OF CHARGE MEMO DT.23.2.1994 ISSUED TO THE 1ST
RESPONDENT.
EXT.P2: TRUE COPY OF LETTER DT.1.11.94 ISSUED TO R1.
EXT.P3: TRUE COPY OF NOTICE DT.14.11.94 ISSUED BY THE BRANCH MANAGER,
RAJAKUMARI.
EXT.P4: TRUE COPY OF LETTER DT.26.12.94 SENT BY THE PETITIONER.
EXT.P5: TRUE COPY OF CLAIM STATEMENT FILED BY R1 BEFORE THE LABOUR
COURT.
EXT.P6: TRUE COPY OF STATEMENT FILED BY THE MANAGEMENT BEFORE THE
LABOUR COURT.
EXT.P7: TRUE COPY OF AWARD DT.23.05.2008 IN ID NO.230/06.
ANNEXURE I: TRUE COPY OF DEPOSITION OF WITNESS WW1 BEFORE THE LABOUR
COURT.
ANNEXURE II:TRUE COPY OF DEPOSITION OF WITNESS MW1 BEFORE THE LABOUR
COURT.
ANNEXURE III:TRUE COPY OF DEPOSITION OF WITNESS MW2 BEFORE THE LABOUR
COURT.
RESPONDENTS' EXHIBITS
NIL.
/TRUE COPY/
P.S TO JUDGE
P.V.ASHA, J.
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W.P(c) No.36554 of 2008-B
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Dated this the 2nd day of February , 2016
JUDGMENT
Ext.P7 award of the Industrial Tribunal, directing reinstatement of the 1st respondent, with back wages, is under challenge in this writ petition, by the State Bank of Travancore (hereinafter referred to as `S.B.T') through its Deputy General Manager.
2. The 1st respondent herein commenced his service in the S.B.T on 29.12.1984, as Clerk/Cashier in its Branch at Konni in Pathanathitta District. He was transferred to Rajkumari Branch of SBT in Idukki District in the year 1993. As he absented himself for more than 90 days continuously, since 3.8.1994, without submitting any application for leave, the bank issued Ext.P2 (M7) registered letter on 1.11.1994, directing him to report for duty within 3 days. As the 1st respondent did not respond to the same, the bank issued Ext.P3 (Ext.M1) notice on 14.11.1994, invoking para 17(a) of the Fifth Bipartite Settlement and directed the workman to report for duty within 30 days, failing which he would be deemed to have voluntarily retired from service on expiry of the 30 days. Eventhough Ext.P3 (M1) notice was served on 17.12.1994, the 1st respondent did not W.P(c) No.36554 of 2008-B 2 report for duty. He did not submit any expalanation also. Therefore, the bank issued Ext.P4 (M2) memo dated 26.12.1994 to the 1st respondent informing his deemed voluntary retirement with effect from 18.12.1994. He was also called upon to pay one month's pay and allowances to the bank in lieu of notice within 15 days of the said notice.
3. An Industrial Dispute was raised in this back ground, at the instance of the 1st respondent and the issue as to the legality and justifiability of the action of the bank in Ext.P4(M2) order of termination of services of the 1st respondent w.e.f 18.12.1994 was referred for adjudication to the Labour Court, Ernakulam and it was numbered as I.D 38/1998. Later consequent to the formation of the Central Government Industrial Tribunal, it was re-numbered as I.D 230/2006.
4. In the claim statement, the 1st respondent stated that he had to go to his native place in Tamilnadu, on leave as the adverse conditions in Rajkumari affected his health. He fell ill in August 1994 and was under medical treatment in his native place and hence could not report for duty, in terms of the letter issued on 14.11.1994; On 8.12.1994, he sent application for leave from 3.8.1994 on medical grounds, under certificate of posting; he W.P(c) No.36554 of 2008-B 3 intimated that he would rejoin duty on 2.1.1995 with fitness certificate. On receipt of the memo terminating his services on voluntary retirement, he submitted representation dated 13.1.1995 requesting to permit him to join duty; but the Bank in their letter dated 7.2.1995 denied the receipt of any application for leave from him; his retrenchment without compensation was illegal,etc.
5. Bank filed a written statement, stating that the 1st respondent had been a habitual absentee; Disciplinary action was taken against him for his unauthorised absence from 10.3.1990 to 22.3.1990, while he was working in Konni Branch, after leaving the office without permission and without locking the despatch box, causing shortage in cash balance, which culminated in a punishment of stoppage of one increment with cumulative effect; After various spells of unauthorised absence between 1.12.1989 to 18.4.1993, he was transferred to Rajkumari Branch in Idukki District; the unauthorised absence continued even after his transfer to Rajkumari branch in July 1993; he remained absent unauthorisedly for 53 days on different spells between 27.8.1993 to 30.1. 1994. This was followed by his W.P(c) No.36554 of 2008-B 4 absence from 3.8.1994 onwards leading to Ext.P2 notice. As he did not respond to the notice, the Bank invoked paragraph 17(a) of the Fifth Bipartite Settlement dated 10.04.1989, treating the 1st respondent as having voluntarily retired from service. According to the bank, the 1st respondent without submitting any application for leave, absented from duty for more than 90 days continuously and therefore they invoked paragraph 17(a) of the Bipartite settlement and issued notice dated 14.11.1994 asking the 1st respondent to report for duty within 30 days, failing which he would be treated as having voluntary retired from service; the 1st respondent did neither report for duty nor did he respond to the same within the 30 days. Hence 1st respondent was treated to have voluntarily retired from service with effect from 17.11.1994.
6. Before the Tribunal, the 1st respondent got himself examined as WW1. Documents W1 to W5 were marked on his side. MW1 and MW2 were examined on the side of the management and documents M1 to M11 were marked. The Tribunal considered the folowing 2 points:
"(i) Had the workman remained absent continuously and unauthorisedly for 90 days?
(ii) Is he entitled for reinstatement or W.P(c) No.36554 of 2008-B 5 retrenchment compensation?"
7. After considering the evidence on record, the Tribunal found that the 1st respondent remained absent from 3.8.94 onwards. But saying that the workman had sent an application for leave i.e, Ext.W1 dated 08.12.1994 accompanied by medical certificate - Ext.W1(a), Tribunal held that there was no occasion for the bank to invoke para 17(a) of the bipartite settlement. The document Ext.M10 letter of the Branch Manager of Rajkumari branch sent to Regional Office on 17.12.1994 was to the effect that, they did not receive any application for leave from the workman since 3.8.1994. He did not report for duty also till the date of that letter - 17.12.1994. Since 1st respondent produced the Ext.W2 receipt from Post Office in support of his case that he sent leave application, the Tribunal accepted his version and disbelieved the version of the bank saying that the bank did not produce the leave register or inward register and concluded that there was no occasion for the Bank to invoke para 17(a) of the settlement. It was further held that the past conduct of the workman cannot be a ground to invoke para 17 of the settlement. Ext.P4 (M2) order of termination was declared illegal consequent W.P(c) No.36554 of 2008-B 6 to which the 1st respondent was held entitled to reinstatement with backwages and continuity of service. The bank is aggrieved by this award.
8. I heard Shri P.Ramakrishnan, the learned counsel appearing for the petitioner and Shri Asok B.Shenoy, the learned counsel appearing for the 1st respondent. The learned Counsel for the respondent argued that unauthorised absence was a misconduct inviting a minor penalty alone at the relevant time and a liberal view beneficial to the workman has to be asopted. The learned Counsel for the petitioner vehemently opposed this pointing out the number of days of absence of the workman and contended that the termination was ordered in accordance with law.
9. I have considered the rival contentions with reference to the pleadings and the materials on record. The point to be decided is whether the award Ext.P7 setting aside Ext.P4 is sustainable and whether the management was right in invoking paragraph 17(a) of the Fifth Bipartite Settlement dated 10.04.1989. Paragraph 17(a) of the settlement reads as follows:
W.P(c) No.36554 of 2008-B 7
"When an employee absents himself from duty for a period of 90 or more consecutive days, without submitting any application for leave or for its extension or without any leave to his credit or beyond the period of leave sanctioned originally/subsequently or when there is satisfactory evidence that he has taken up employment in India or when the management is reasonably satisfied that he has no intention of joining duties, the management may, at any time thereafter give a notice to the employee at his last known address calling upon him to report for duty within 30 days of the date of notice, stating interalia the grounds for coming to the conclusion that the employee has no intention cf joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 days of the notice or given an explanation for his absence within the said period of 30 days satisfying the management that he has not taken up another employment or avocation and that he has no intention of not joining duties, the employee will be deemed to have voluntarily retired from the bank's service on the expiry of the said notice. In the event of the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within 30 days from the date of of the expiry of the aforesaid notice without prejudice to the bank's right to take any action under the law or rules of service"
W.P(c) No.36554 of 2008-B 8
10. It is an admitted fact that the 1st respondent did not submit any application for leave before 3.8.1994 or or at any time within the 90 days starting from 3.8.1994. The notice which he claimed to have sent i.e W1 was sent only on 8.12.1994. It is this application, which, according to the Tribunal stands in the way of invoking para 17(a) of the settlement. One of the conditions to invoke para 17(a) is :
"When an employee absents himself from duty for a period of 90 or more consecutive days, without submitting any application for leave"
Therefore the finding of the Tribunal that there was no occasion for the Bank to invoke para 17(a) is unsustainable and incorrect.
11. The next question to be examined is whether it was necessary to state in the notice that the Bank came to the conclusion that the 1st respondent did not have any intention to join duty and to state the circumstances which led to such a conclusion.
12. In this context it is necessary to analyse each part of para 17(a) of the the bipartite settlement. First step to be taken is to issue notice to the workman. The circumstances under which notice can be sent, are : The workman should have (1) W.P(c) No.36554 of 2008-B 9 absented from work for 90 or more consecutive days: (a) such absence should be without submitting any application for leave/application for extension of leave/application for leave submitted when there is no leave to his credit/when that application is in continuation of the period of sanctioned leave or (2) when there is satisfactory evidence that he has taken up other employment in India; or (3) when the management is satisfied that he has no intention to join duty. If any of the above 3 conditions exist, the management may give a notice to the employee in his last known address calling upon him to report for duty within 30 days of the notice. The last part of the sentence provides that management may interalia state in the notice the grounds for coming to the conclusion that he has no intention of joining duty and shall furnish necessary evidence, where available. A careful reading of the whole sentence will reveal that the grounds for coming to the conclusion that he has no intention of joining duty need be stated when the notice is issued in a case where the management came to the conclusion that he has no intention of joining duty. In the other 2 cirrcumstances, i.e in a case where notice was issued when the employee remained W.P(c) No.36554 of 2008-B 10 absent without submitting application for leave and in a case where the management found that the employee got other employment. Similarly evidence need be furnished only in a case where the notice is issued when there is satisfactory evidence before the management that he got other employment. As each of the three circumstances under which notice can be sent are separated by the expression 'or' it has to be understood to mean that statement in the notice shall be one corresponding to the circumstances under which it is sent. When notice can be issued under any of the circumstances, it cannot be said that notice shall contain reasons to satisfy all the circumstances. The requirements in last portion of the sentence have to be read with the corresponding provisions in the 1st part of the sentence in para 17 i.e each of the 3 pre-requisites for issuing notice will indicate that the reasons for coming to the conclusion about his intention not to join duty as well as furnishing evidence, where available, are required only in cases where notice is issued on the ground that the management is satisfied that he has no intention to join duty (or when the management is reasonably satisfied that he has no intention of joining duties) and that W.P(c) No.36554 of 2008-B 11 evidence need be furnished only when the notice is issued on the ground that he has taken up other employment or avocation (or when there is satisfactory evidence that he has taken up employment in India).
13. Therefore it can be seen that the Tribunal was not correct in construing the provisions contained in para 17(a), in such a manner that the notice should state that the worker has no intention to join duty along with the reason for coming to such conclusion. Hence the finding of the Tribunal that the notice under para 17(a) is required to contain a statement that the worker has no intention to join duty and the reason for coming to the conclusion, is perverse. The further finding that para 17(a) was not liable to be invoked once the worker submitted an application for leave, can also not be accepted.
14. Moreover the workman has no case that his absence from 8.3.1994 was after submitting application for leave. The only application the workman produced saying that it was sent under certificate of posting is W1, the application for leave in the proforma submitted on 8.12.94, along with W3(a) medical certificate dated 8.12.1994. The last stage on receipt of the W.P(c) No.36554 of 2008-B 12 notice under para 17(a) is for the employee to report for duty within 30 days of the notice. Otherwise he has to submit an explanation for his absence within the 30 days period. In case he is unable to satify the management that his absence was on valid reasons he will be deemed to have voluntarily retired from service as provided in the notice. In this case the 1st respondent did not respond to Ext.P2 letter (Ext.M7) issued to him on 1.11.1994, even after he received it as evident from M7(a) acknowledgment card. It was after issuing Ext.P2(M7) notice directing the workman to join duty, that Ext.P3 (M1) notice was issued. Even after its receipt he did not choose to report for duty or to submit any explanation as to his absence or as to his inability to submit application for leave. He did not also inform the Bank his inability if any to report for duty, in terms of the direction of the Bank. The only thing he did, even according to him, was sending an application for leave in the proforma on 8.12.1994 along with medical certificate. He did not choose to write a word to the Bank explaining his inability to report for duty. Thus he did not submit any explanation so as to satisfy the Bank of the reasons for his absence and to give him another W.P(c) No.36554 of 2008-B 13 opportunity to report for duty. Even then the Tribunal came to the conclusion that there was no circumstance to invoke para 17
(a).
15. In this case the workman absented himself without submitting application for leave. Assuming that the Bank has to state that the 1st respondent had no intention to join duty and also to state the reason for coming to such a conclusion, it is to be noted that the notice Ext. P3 was issued refering to the earlier notice by which he was asked to report for duty within 3 days, as he had been in continuous absence for more than 90 days for the period from 3.8.1994 onwards. 1st respondent did not respond to Ext.P2 notice also. The Bank has issued Ext.M2 (Ext. P4) order, after expiry of the 30 days of the notice as the 1st respondent did not report for duty within the 30 days period of Ext.P3 notice. No explanation was also submitted by the workman within the said period. Assuming that the 1st respondent had sent the leave application as claimed by him and as found by the Tribunal, on 8.12.1994 i.e after a period of more than 120 days of continuous absence, even then there is no explanation furnished by him. He did not explain why he absented without even submitting W.P(c) No.36554 of 2008-B 14 application for leave.
16. In the above circumstances I find that the Tribunal has misconstrued the provisions in para 17(a) of the Bipartite settlement and declared Ext.P4 (M2) order unsustainable. I therefore set aside Ext.P7 award and uphold the order of termination in Ext.P4.
This Writ Petition is accordingly allowed.
Sd/-
(P.V.ASHA, JUDGE) rtr/