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Kerala High Court · body

2009 DIGILAW 618 (KER)

Vijayan C v. Catholic Syrian Bank Thrissur

2009-07-09

V.K.MOHANAN

body2009
JUDGMENT V.K.Mohanan, J. 1. Challenging mainly Ext. P13 award of the Labour Court, Kozhikode in ID (C) No. 2 of 2002, the petitioner/workman preferred this writ petition. The Central Government, in exercise of its powers under Section 10 of the Industrial Disputes Act, 1947, referred the issue viz., justifiability of the action of the management in declaring voluntary cessation of the service of worker, for adjudication of the Tribunal. By the impugned award, the Tribunal answered the issue in favour of the management upholding the impugned action of the management in declaring voluntary cessation of service of the petitioner/the workman. The above finding and award are challenged in this writ petition. 2. The case of the petitioner is that he entered into the service of the Catholic Syrian Bank during the year, 1979 as Peon. After his joining in service, he had discharged his duties to the satisfaction of the management which was recognised and admitted by the management as per Ext. P1 series of certificates. According to the petitioner, after nineteen years from his entry in service, that is from 1998 onwards, he had some mental disease and he had undergone prolonged treatment for the same. According to him, he could fully recover only by 25/05/2000. That being the position, the management issued Ext. P3 show cause notice dated 09/09/1999 wherein it is stated that he was wilfully absent from 16/06/1999 without submitting leave application and he had not joined duty even after receiving another notice on 25/06/1999 and a letter dated 17/08/1999, which he received only on 23/08/1999. The management, pursuant to Ext. P3, issued Ext. P4 order by which he was relieved from the service of the Bank with effect from 09/10/1999 on Voluntary Cessation of Employment. 3. According to the petitioner, against Ext. P4, he preferred Ext. P6 appeal dated 01/06/2000 before the Deputy General Manager. As there was no favourable action on Ext. P6, he filed Ext. P9 petition before the Regional Labour Commissioner (Central) on the basis of which Ext. P10 conciliation proceedings were initiated. The management filed Ext. P8 written comments against which the petitioner/workman preferred Ext. P7 reply. As the matter could not be settled in the conciliation proceedings, as per Ext. P10, the proceedings were terminated consequent to which the dispute was referred. The workman preferred a claim statement and the management has filed the objection statement, before the Tribunal. The management filed Ext. P8 written comments against which the petitioner/workman preferred Ext. P7 reply. As the matter could not be settled in the conciliation proceedings, as per Ext. P10, the proceedings were terminated consequent to which the dispute was referred. The workman preferred a claim statement and the management has filed the objection statement, before the Tribunal. During the enquiry, three witnesses were examined as WW 1 to WW 3 for the workman and one witness was examined from the side of the management as MW1. From the side of the workman, Exts. W1 to W10 documents were produced and marked and from the side of the Management, Exts. M1 to M22(a) documents were produced. The Tribunal finally upheld the action of the management and thus aggrieved by Ext. P13 award, the petitioner/workman preferred this writ petition. 4. I have heard learned counsel appearing for the petitioner as well as the Standing Counsel for the first respondent/management and also perused the materials on record. 5. The learned counsel for the petitioner vehemently submits that the Tribunal has miserably failed to understand and appreciate the various provisions of the settlement, i.e., Ext. P15 and simply upheld the action taken by the management. By inviting clause 13 of Ext. P15 settlement, the learned counsel submits that for issuing a show cause notice like Ext. P3, the management will get cause of action only on the expiry of 90 days from the date of the alleged unauthorised absence of the delinquent workman. In the present case, referring to Ext. P3, it is pointed out that even according to the management, the workman was absent from 16/06/1999 and therefore, in view of clause 13(a) of Ext. P15 settlement, the management can issue notice only on a date after 16/09/1999, but in the present case, admittedly, the notice is dated 09/09/1999. Therefore, there is no valid notice as contemplated by the settlement .and therefore, Ext. P4 order is illegal. But the Tribunal miserably failed to understand the above provision contained in the settlement which is a provision to be considered in favour of the workman. It is also the case of the learned counsel that by producing Ext. Therefore, there is no valid notice as contemplated by the settlement .and therefore, Ext. P4 order is illegal. But the Tribunal miserably failed to understand the above provision contained in the settlement which is a provision to be considered in favour of the workman. It is also the case of the learned counsel that by producing Ext. P5, medical fitness certificate dated 25/05/2000 issued by WW 2, and other documents, the petitioner/ workman succeeded in establishing the fact that there was no wilful absence from attending the duty and he had been constrained to keep away from the service because of his mental ill health. The learned counsel also submits that the Tribunal has failed to consider the above ground and on wrong appreciation of the facts and evidence involved in the case. The Tribunal erroneously held especially, on the basis of Ext. M22 that the petitioner/workman could have reported for duty and his version for absence of duty due to ill-health is unbelievable. Thus, according to the learned counsel, Ext. P4 order and Ext. P13 award are liable to be set aside. 6. On the other hand, Sri. Anand, learned counsel appearing for the first respondent/ management submits that the Tribunal has passed an award on the basis of the issue referred to it, after considering the materials and evidence adduced therein, and this Court, while exercising the jurisdiction under Article 226 of the Constitution of India, has no jurisdiction to sit in appeal against the findings of the Tribunal. It is also pointed out that if two views are possible, the onewhich is in line with the Tribunal shall be upheld. It is also submitted that there is no scope of re-appreciation of evidence and evaluation of the evidence, which is already appreciated by the Tribunal. Besides the above, learned counsel pointed out that the contention of the petitioner that no notice was issued in terms of clause 13 of Ext. P15 settlement, is not tenable. According to him, 90 days as contemplated by clause 13(a) of the settlement is completed on 13/09/1999 and the petitioner/workman received Ext. P3 on 15/09/1999 and therefore, there was compliance of clause 13(a). P15 settlement, is not tenable. According to him, 90 days as contemplated by clause 13(a) of the settlement is completed on 13/09/1999 and the petitioner/workman received Ext. P3 on 15/09/1999 and therefore, there was compliance of clause 13(a). It is further submitted that even if there is no compliance regarding the service of notice within the time stipulated, the petitioner has miserably failed to make out or convince this Court regarding any prejudice caused to him on such failure. Learned counsel further argued that the petitioner/workman had no intention to join in service of the first respondent/Bank and the same is evident from Ext. M22 and also from the documents Exts. M5, M6 and M7, which would show that towards the final settlement, being the retirement benefit, he had received altogether nearly a sum of Rs.82,000/-. According to the learned counsel, had the petitioner been any intention to join in the service of the Bank, he could not have received the terminal benefit. The above fact itself is sufficient to justify the stand of the Bank in relieving him from the service. Thus, according to the learned counsel, there is no scope for interference of this Court with Ext. P13 award, in exercise of the powers under Article 226 of the Constitution of India. 7. I have carefully considered the arguments advanced by both the counsel and also perused the materials. 8. It is settled position of law, while exercising the jurisdiction under Article 226 of the Constitution of India, that this Court cannot act as an appellate authority over the jurisdiction of the Tribunals, especially the Labour Court, established under the provisions of the Industrial Disputes Act, 1947. In the present case, though I have already indicated the issue referred to the Tribunal, for the purpose of discussing the issue, the same is again quoted for convenience, which is as follows: "Whether the action of the management in declaring voluntary cessation of the service of Sri. C. Vijayan is justified? If not, what relief the complainant is entitled?" In order to give answer to the above issue, on the basis of the rival pleadings and evidence, the Tribunal framed two issues namely, 1) Whether the worker absented from work without reasonable cause for a period of 90 or more consecutive days? and (2) Whether the management was justified in treating the absence as voluntary cessation of service? and (2) Whether the management was justified in treating the absence as voluntary cessation of service? If not, further reliefs liable to be granted? Learned counsel for the petitioner invited my attention to the beginning of paragraph 8 of the award which runs "It is under the cover of the third limb i.e., on the promise that the worker has no intention of joining duty, the impugned action was taken". Thus, the learned counsel submits that from the above, it is crystal clear that the Tribunal failed to understand the true spirit of clause 13(a) of Ext. P15 settlement. In the light of the issue referred to it, the Tribunal has to find out whether the workman is justified or whether there was any reasonable ground for his absence during the relevant period. In the present case, as per the materials on record, the workman tried to apprise the Tribunal the reason for his absence during the relevant period supported by Ext. P5 medical certificate issued by WW 2, who is a Doctor attached to the Kozhikode Medical College Hospital. When he was examined irvjthe Tribunal, he had given the evidence in support of the workman, justifying Ext. P5/Ext. W5 Medical Certificate issued by him. In order to disbelieve the said Doctor, the Tribunal had very much referred to Exts. M9, M11, M12 and M13 medical certificates issued by the same Doctor, which were not produced by the workman, but by the management though the same were not properly proved. The Tribunal, in its award, went to the extent to hold that there is no guarantee for the statement of WW 2 that the patient has completely recovered from illness and the Tribunal was reluctant to place any reliance on Ext. W5 in isolation and disbelieved the testimony of WW 2, stating that he goes on issuing certificates one after another obviously to suit the period of absence stated by the worker. 9. In order to come into the above finding, there is no material. It is also observed by the Tribunal that the petitioner/workman was fit enough or capable enough to attend the duties in normal conditions since 25/05/2000 and it was during the currency of last period of illness mentioned in Ext. W5, the worker accepted the terminal benefits by executingExts.M5,M6and M7 receipts. It is borne out from the records that Exts. It is also observed by the Tribunal that the petitioner/workman was fit enough or capable enough to attend the duties in normal conditions since 25/05/2000 and it was during the currency of last period of illness mentioned in Ext. W5, the worker accepted the terminal benefits by executingExts.M5,M6and M7 receipts. It is borne out from the records that Exts. M5, M6 and M7documentsarepertaining to the period during which the worker was under mental disorder and ailment and he was under the treatment of WW 2. Even if it is admitted as true, I am of the view that such acceptance of some financial benefit given by the management during the days of his mental illness and financial crisis, especially, when he was not in a position to draw salary or other monetary benefits from his employer, cannot be taken as a ground to reject the claim of the workman. As pointed out by learned counsel for the petitioner, Ext. M5 is not a dated receipt. Similarly, in Ext. M22, the cheque date is also not given. However, it is pertinent to note that by producing certain documents like M9, M11, M12 and M13, the management tried to disprove the case of the petitioner as well as the evidence of WW 2. Even if those documents were not properly proved, one fact can be drawn from such documents with the aid ofExt.W5/P5thatthe petitioner was under treatment for his mental ailment and the management was aware of the fact that the workman had some serious ailment. 10. But, the Tribunal, after referring the evidence, has held that".... So, even accepting Ext. W5 and the period of illness stated by the worker as true, there is no explanation for Ext. M22 executed at a time while the worker was in a fit state of mind " The Tribunal further continued to state that"... Unauthorised long absence, receipt of terminal benefits and execution of Ext. M22 would sufficiently indicate that the worker had no intention to resume duties and the action of the management was just and proper " According to me, the above finding is absolutely unwarranted, especially in the light of the evidence and materials on record. In this juncture, it is relevant to note that the above finding is absolutely against Ext. P5/Ext. W5 certificate. In this juncture, it is relevant to note that the above finding is absolutely against Ext. P5/Ext. W5 certificate. The Tribunal went to the extent to say that there is no explanation from the workman for Ext. M22 by which he had received Rs.1013.51. Admittedly, Ext. M22 is dated 07/02/2001 whereas Ext. P5 issued by WW 2 on 25/05/2000 after his full satisfaction that the ailment of the petitioner was cured and he is medically fit. Therefore, Ext. M22 cannot be taken as evidence to hold against the workman that he had no ailment at the time of Ext. M22. 11. In the light of the observation that I have made with respect to M5, M6 and M7 and .in view of the facts and circumstances under which Ext. M22 came into existence, it cannot be held that the worker had no intention to resume duties as held by the Tribunal because the petitioner has not reported for duty for a certain period. The finding of the Tribunal on the explanation given by the petitioner/worker regarding his absence has a vital role in deciding the issue referred to the Tribunal for adjudication. It is beyond dispute that the management came into a conclusion that the worker has no intention to join duty and consequently, took further proceedings. Therefore, the Tribunal ought to have appreciated the evidence and materials on record in its correct perspective so as to come into a conclusion as to whether the explanation offered by the worker is satisfactory and convincing. The evidence, which is referred and discussed above, unerringly establishes that the explanation offered by the workman is genuine, reasonable and convincing. But, the approach of the Tribunal is illegal and arbitrary, due to which the Tribunal miserably failed to answer the issue referred to it. 12. The other point raised by the learned counsel for the first respondent/management is that Ext. P3 notice was issued fully in terms of clause 13 of Ext. P15 settlement whereas the definite contention of the petitioner as well as his counsel is that Ext. P3 cannot be termed as the one contemplated by clause 13 of Ext. P15. Admittedly, Ext. P3 is dated 09/09/1999 which would further show that even according to the management, the petitioner was absent unauthorisedly from 16/06/1999. P15 settlement whereas the definite contention of the petitioner as well as his counsel is that Ext. P3 cannot be termed as the one contemplated by clause 13 of Ext. P15. Admittedly, Ext. P3 is dated 09/09/1999 which would further show that even according to the management, the petitioner was absent unauthorisedly from 16/06/1999. If that be so, the very purpose of issuance of notice in terms of the above clause would arise only on the expiry of 90 days or thereafter, from the date of absence of the worker. Admittedly, Ext. P3 is dated 09/09/1999 when there was no cause of action for the management. Learned counsel for the respondents submits that 90 days completed on 13/0971999. It is further submitted on the strength of the decision of the Apex Court reported in The Assistant Transport Commissioner, Lucknow v. Nand Singh, AIR 1980 SC151 that even though Ext. P3 is dated 09/09/1999, its operation will commence only when it is received by the petitioner, that was on 15/09/1999. Even though the above two days suggested by the counsel are accepted, let one day remains for accruing the cause of action. In a labour dispute, such arithmetical approach is absolutely unwarranted. 13. Even otherwise, the arguments of the learned counsel for the respondents are accepted, still then there is no justification for issuing Ext. P4, as pointed out by the learned counsel for the petitioner, since the management will get jurisdiction only on the expiry of 30 days from the date of receipt of Ext. P3. In the present case, according to the respondents, Ext. P3 was accepted by the petitioner on 15/09/1999. If that be so, on the expiry of 30 days from 15/09/ 1999, only the management will get jurisdiction to take further action in the matter. But, in the present case, as evidenced by Ext. P4, the order is dated 13/10/1999 before arising the cause of action. Therefore, Ext. P4 cannot be treated as proceedings in terms of clause 13 of Ext. P15. Therefore, Ext. P4 is issued in gross violation of the condition contained in sub-clause (c) of clause 13 of Ext. P15 which contemplates that 30 days notice is must before taking proceedings. 14. Even otherwise, in the facts and circumstances involved in the case, I cannot approve the steps taken by the first respondent/management. On a reading of clause 13(a) of Ext. P4 is issued in gross violation of the condition contained in sub-clause (c) of clause 13 of Ext. P15 which contemplates that 30 days notice is must before taking proceedings. 14. Even otherwise, in the facts and circumstances involved in the case, I cannot approve the steps taken by the first respondent/management. On a reading of clause 13(a) of Ext. P15 which reads as follows: "(a) When an employee absents himself from work 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 a 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 the notice, stating inter alia the grounds for coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 days of the notice or gives 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 expiry of the aforesaid notice without prejudice to the bank's right to take any action under the law or rules of service." From the above, it is clear that when the delinquent worker is absent for a period of 90 or more consecutive days, in the absence of any application for leave or for its extension or without any leave to his credit or beyond a period of leave sanctioned originally or subsequently, the management has no absolute authority to hold that he has no intention for joining duty. In order to come into such conclusion, the management must satisfy with reason to hold that the worker has no such intention. Therefore, before making such conclusion, the management is bound to consider the explanation offered and the reasons stated for not attending the duty. But, in the present case, the management issued Ext. P4 without giving an effective opportunity to the workman to offer his explanation. The alleged letters and notices were issued during the period of his ailment. Therefore, I have no hesitation to hold that the management has failed in arriving at a conclusion that the workman has no intention to join duty, supported by reasons and materials. Thus, Ext. P4 cannot be treated as the one issued under clause 13(a) of Ext. P15. 15. In the present case, even the attempt of the management based upon Ext. M9, M11, M12, M13, M15, M16, M17 and M18 was that the petitioner could not attend duty because of his mental illness. In the present case, by producing Ext. P5 and examining WW 2, it has been established with clinching evidence that he was under mental ailment during the period of absence. If that be so, it was incumbent upon the Tribunal to consider the above explanation in its true perspective so as to deal with the issue referred to it for adjudication. Therefore, from Exts. P4, P7 etc., it is crystal clear that the management has not attempted to consider the reasons given by the workman for not attending duty. Therefore, it cannot be held that before issuing Ext. P4, the management is satisfied with the reasons for coming into a conclusion that the workman has no intention to resume duties. The Tribunal has also miserably failed to consider the above aspects. Therefore, I am of the view that Ext. P4 order is not factually and legally sustainable and consequently, the finding of the Tribunal is also not legally sustainable. Therefore, Ext. P13 award is liable to be set aside and I do so. 16. In the light of the above finding, the petitioner is entitled to get reinstated in service, especially in the light of the facts that while the petitioner was in service, the management has appreciated his service as evidenced in Ext. Therefore, Ext. P13 award is liable to be set aside and I do so. 16. In the light of the above finding, the petitioner is entitled to get reinstated in service, especially in the light of the facts that while the petitioner was in service, the management has appreciated his service as evidenced in Ext. P1 series and subsequently, he could not attend for the duty as he was undergoing for treatment for his mental disorder and now, a qualified doctor has certified that he is fit for discharging his duties. Therefore, there will be a direction to the respondents to reinstate the petitioner in service forthwith. The absence of the petitioner in the service of the first respondent/bank from 16/06/1999 till 01 /06/2000 shall be treated as he was on leave without allowance. The petitioner is entitled to get back wages in the light of the order for reinstatement. 17. In this context, it is relevant and apposite to refer a latest decision of the Honourable Apex Court in P. V. K. Distillery Limited v. Mahendra Ram, 2009 (5) SCC 705 . In para 18 of the above decision, it is held as follows: "18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched." In para 20, It is further held as follows: "20. In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the Courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. (Western India Match Co. Ltd. v. Industrial Tribunal) In the above decision, in para 27, it is further held as follows: "27. (Western India Match Co. Ltd. v. Industrial Tribunal) In the above decision, in para 27, it is further held as follows: "27. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages." But, this Court cannot ignore the fact that even though the petitioner was fit for discharging his duty from 25/05/2000, he has not discharged such duty and he was not on duty from 01/06/2000 till his date of reinstatement. If that be so, without doing work, he is not entitled to get the full back wages. In the light of the above decision of the Apex Court and also in the light of the above finding, it is clear that due to the illegal procedure adopted by the management, the workman , was kept out of service though he was willing and claimed for duty with effect from 01/06/2000. Therefore, in the interest of justice, I am of the view that the management can be directed to pay half of the back wages for the period from 01/06/2000 till the date of reinstatement. The first respondent/management is directed to pay him half of the back wages as calculated and quantified for the period from 01/06/2000 till the date of his reinstatement and the same shall be paid on the date of his reinstatement itself. On the reinstatement of the petitioner, he is entitled to get all service and monetary benefits. The writ petition-is allowed quashing Exts. P4 and P13 award.