Allowed

The Thodupuzha Taluk Co-Operative Rubber Marketing Society v. the Kerala Co-Operative Tribunal

Kerala HC1 Mar 2016WP(C)/31764/2013

Case brief

AI extract

What is this about?

Dismissal of a cooperative society employee for abandonment of service was upheld without a further disciplinary enquiry. The Court allowed the society's petition, set aside the Tribunal's judgment granting service and retirement benefits, and confirmed the Arbitration Court's rejection of the employee's claim.

What did the court decide?

Ext.P15 judgment of the Tribunal set aside; the Arbitration Court's view in ARC No.117 of 2008 confirmed.

The Thodupuzha Taluk Co-Operative Rubber Marketing… — Cooperative Societies | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937

¶5

WP(C).No. 31764 of 2013 (U)

¶6

PETITIONER(S):

¶7

THE THODUPUZHA TALUK CO-OPERATIVE RUBBER MARKETING SOCIETY NO.E.222, REPRESENTED BY ITS MANAGING DIRECTOR, P.J.EMMANUEL, S/O.JOSEPH, AGED 56, PADINJAREKKUDIYIL, THODUPUZHA EAST.

¶8

BY ADVS.SRI.P.MARTIN JOSE

¶9

SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.S.VAIDYANATHAN

¶10

RESPONDENT(S):

¶11

1. THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM, PIN 695001.

¶12

2. THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM, PIN 695001.

¶13

3. JOSE PHILIP, KALLARACKAL HOUSE, KURUMANNU P.O, PALAI, KOTTAYAM DISTRICT, PIN 686554.

¶14

R1 & 2 BY SENIOR GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR R3 BY ADV. SRI.GEORGE POONTHOTTAM

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2015 THE COURT ON 01-03-2016, DELIVERED THE FOLLOWING:

¶16

¶17

WP(C).No. 31764 of 2013 (U)

¶18

APPENDIX

¶19

PETITIONER(S)' EXHIBITS

¶20

EXT.P1 -	TRUE COPY OF APPLICATION SUBMITTED BY THE 3RD RESPONDENT ON 01-12-1990
EXT.P2 -	TRUE COPY OF NOTICE DATED 8-2-1991 ISSUED BY THE PETITIONER SOCIETY TO THE 3RD RESPONDENT.
EXT.P3 -	TRUE COPY OF EXPLANATION DATED 21-2-1991 SUBMITTED BY THE 3RD RESPONDENT
EXT.P4 -	TRUE COPY OF NOTICE DATED 18-5-1991 ISSUED BY THE PETITIONER SOCIETY TO THE 3RD RESPONDENT.
EXT.P5 -	TRUE COPY OF RESOLUTION PASSED ON 4-6-1991 BY THE FACTORY MANAGEMENT COMMITTEE
EXT.P6 -	TRUE COPY OF LETTER DATED 10-06-1991 ISSUED BY THE PETITIONER
EXT.P7 -	TRUE COPY OF APPEAL DATED 10-7-1991 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE BOARD OF DIRECTORS OF THE PETITIONER SOCIETY.
EXT.P8 -	TRUE COPY OF ORDER DATED 16-10-1991 PASSED BY THE BOARD OF DIRECTORS
EXT.P9 -	TRUE COPY OF JUDGMENT IN WPC.NO.12825/1991 DATED 21-5-2003 OF THIS HON'BLE COURT.
EXT.P10 -	TRUE COPY OF ORDER DATED 17-12-2003 IN RP NO.544 OF 2003 OF THIS HON'BLE COURT.
EXT.P11 -	ORDER DATED 25-8-2004 OF THE JOINT REGISTRAR, IDUKKI
EXT.P12 -	TRUE COPY OF JUDGMENT IN WPC.NO.9219 OF 2008 DATED 18-3-2008 OF THIS HON'BLE COURT.
EXT.P13 -	TRUE COPY OF WRITTEN STATEMENT DATED 19-9-2008 FILED BY THE PETITIONER SOCIETY IN A.R.C.NO.117/08 BEFORE THE CO-OPERATIVE ARBITRATION COURT
EXT.P14 -	TRUE COPY OF AWARD DATED 7-8-2012 IN ARC NO.117/2008 OF THE 2ND RESPONDENT
EXT.P15-	TRUE COPY OF ORDER DATED 31-8-2013 IN APPEAL NO.88/2012 OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.

¶21

RESPONDENT(S)' EXHIBITS

¶22

--------------------------------------- NIL.

/ TRUE COPY /

P.S. TO JUDGE

A.M. SHAFFIQUE, J.

¶27

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

¶28

W.P.(C).No. No.31764 of 2013

¶29

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

¶30

Dated this the 1^st day of March, 2016

¶31

JUDGMENT

¶32

This writ petition has been filed challenging Ext.P15, the judgment passed by the Kerala Co-operative Tribunal in Appeal No.88 of 2012. The petitioner namely, the Thodupuzha Taluk Cooperative Rubber Marketing Society is the respondent in the said appeal. The petitioner has also sought for a declaration that the transfer of the third respondent's application filed before the Joint Registrar invoking Rule 176 of the Kerala Co-operative Societies Rules, 1969 (herein after referred to as 'the Rules' for short) to the Co-operative Arbitration Court was illegal and therefore the entire proceedings resulting in Ext.P15 are vitiated and null and void. In the alternative, the petitioner seeks for making reasonable amendments to the amount directed to be paid to the third respondent.

¶33

The short facts involved in the writ petition would disclose that the third respondent herein was appointed as Factory Manager of the Crumb Rubber Factory at Muttam, established by the petitioner Society on 4.5.1983. It is alleged that without any valid explanation, the third respondent availed of

¶34

W.P.C. No. 31764 of 2013 -2-

¶35

leave and accordingly show cause notice dated 8.2.1991 was issued calling upon the third respondent to submit his explanation. He submitted his explanation on 21.2.1991. By Ext.P4 dated 18.5.1991, the third respondent was called upon to report for duty. Said notice was served on the third respondent on 25.5.1991. The third respondent did not join duty nor did he submit any further explanation. Hence the Management Committee which held on 4.6.1991 observed that the third respondent had wilfully abandoned his job and hence it was resolved to dismiss him from service with effect from 27.2.1991. The resolution is produced as Ext.P5. By Ext.P6 letter dated 10.6.1991, the order of dismissal was communicated to the third respondent.

¶36

The third respondent preferred an appeal before the Board of Directors, which came to be dismissed as per order dated 16.10.1991. The third respondent thereafter challenged the said order by filing W.P.(C).No.12825 of 1991. By judgment dated 21.05.2003, this Court directed the third respondent to avail the alternative remedy under the Kerala Co-operative Societies Act (herein after referred to as 'the Act' for short). Though review petition was filed, the same also was dismissed,

¶37

W.P.C. No. 31764 of 2013 -3-

¶38

however relegating him to approach the Joint Registrar of the Cooperative Societies.

¶39

The petitioner filed a petition before the Joint Registrar of Co-operative Societies invoking Rule 176 of the Rules, seeking to rescind the resolution of the Factory Management Committee and the decision of the Board of Directors. The same came to be rejected by the Joint Registrar as per order dated 25.08.2004. The third respondent preferred an appeal before the Government under Section 83(i)(j) of the Act. The Government as per order dated 21.03.2006 set aside the order passed by the Joint Registrar and the matter was remitted back for fresh consideration.

¶40

In the meantime, the third respondent approached this Court by filing W.P.(C).No.9219 of 2008 and sought for a direction to transfer the proceedings pending before the Joint Registrar to the Co-operative Arbitration Court and this Court by judgment dated 18.03.2008 directed the Joint Registrar to transfer the proceedings to the Arbitration Court. The Arbitration Court took evidence in the matter and came to a finding that there was wilful abandonment of job by the third respondent. Accordingly, the arbitration case A.R.C.No.117 of 2008 was rejected as per award

¶41

W.P.C. No. 31764 of 2013

¶42

-4-

¶43

dated 7.8.2012. Challenging the said award, the third respondent approached the Tribunal by filing an appeal which resulted in Ext.P15 order.

¶44

The main contention urged by the petitioner is that, the finding of the Tribunal that the petitioner could have been dismissed from service only after following the procedure prescribed under Rule 198 of the Rules is wrong and unsustainable. It is contended that in a case of refusal to join duty even after service of notice, it will clearly amount to wilful abandonment of job for which no further enquiry was contemplated and therefore the Tribunal has committed serious error of law in setting aside the award passed by the Arbitration Court.

¶45

Heard the learned Senior Counsel Sri. S. Sreekumar appearing for petitioner, and the learned Counsel Sri. George Poonthottam, appearing on behalf of the third respondent. The short question to be considered in this writ petition is in regard to the validity of Ext.P15 judgment of the Tribunal.

¶46

The learned Senior Counsel appearing on behalf of the petitioner placed reliance on the following judgments to contend that the order is clearly illegal. Reference is made to the

¶47

W.P.C. No. 31764 of 2013 -5-

¶48

judgment in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (2013) 10 SCC 324, Vijay S. Sathaye v. Indian Airlines Limited and Others (2013) 10 SCC 253, Regional Manager, Central Bank of India v. Vijay Krishna Neema and Others (2009) 5 SCC 567 and New India Assurance Co. Ltd. V Vipin Behari Lal Srivastava (2008) 3 SCC 446.

¶49

On the other hand learned counsel appearing on behalf of the third respondent relied upon the judgment Deepali Gundu Surwase 's case (supra) to contend that, once it is found that the order of dismissal was bad, there was justification on the part of the Tribunal in directing payment with back wages and pensionary benefits. He also relied upon the judgment in Krushnakant B. Parmar v. Union of India and Another (2012) 3 SCC 178. Before proceeding to consider the judgments relied upon by either side, it will be useful to consider the manner in which the Arbitration Court and Tribunal had decided the matter.

¶50

Ext.P14 is the award passed by the Arbitration Court. Charges levelled against the third respondent was that he was not attending duty since 9.11.1990. He had not submitted any leave

¶51

W.P.C. No. 31764 of 2013 -6-

¶52

as per rules. Therefore he was called upon to show cause why disciplinary action should not be taken against him. The show cause notice is dated 8.2.1991. The third respondent submitted a reply wherein it is stated that he was hospitalised for 16 days and after discharge from the hospital he has submitted an application for leave for a period of three months. Hence he requested the petitioner authority not to proceed with the disciplinary action. A further letter was sent by the Managing Director on 18.05.1991 referring to his reply. It was mentioned in the said letter that though he had requested for three months' leave from 27.11.1990, the said period expired on 27.2.1991. Hence it has to be presumed that the third respondent had abandoned his service. He was informed that if he intended to continue in service of the establishment, he has to report for duty within 8 days on receiving the communication and it was informed that it will be deemed that he has abandoned the service of the establishment on the expiry of the period of leave shown in his letter dated 21.2.1991. It seems that there was no response from the third respondent and accordingly, the Management Committee took a decision to dismiss him from service. Letter dated 10.6.1991 was issued which reads as under:

¶53

W.P.C. No. 31764 of 2013

¶54

-7-

¶55

“Show cause Notice seeking disciplinary action for unauthorised absence and misappropriation of funds were served on you by notices referred to above. You did not respond to the Notices served on you calling forth explanation. In the light of your above conduct, the Factory Management Committee has treated your absence as self abandonment of job and has resolved to initiate disciplinary action against you as contemplated in the notices.

¶56

O R D E R

¶57

I do hereby dismiss you from service as Factory Manager of Corubber Crumb Factory, a unit of Thodupuzha Taluk Co operative Rubber Marketing Society Ltd. No. E.222 with effect from 27.2.1991, for reasons cited above.”

¶58

It is thereafter, by Ext.P7 dated 10.7.1991 that the matter was taken up before the Appeal Committee. The appellate authority informed the third respondent by letter dated 16.10.1991 that his appeal cannot be entertained. The communication dated 16.10.1991 reads as under:

¶59

“Sub: Your appeal against dismissal

¶60

You participated in the hearing of appeal on 19.9.1991. You were heard by the Committee. By way of clarification questions were put to you regarding the misappropriation of amounts. So

¶61

W.P.C. No. 31764 of 2013

¶62

-8-

¶63

also, about the failure on your part to report for duty. The Committee has come to the decision unanimously that there is no scope for interference and your appeal is dismissed.”

¶64

The Arbitration Court considered the issue whether the

¶65

dismissal of plaintiff is liable to be set aside or whether the plaintiff is entitled to get all service benefits from 27.2.1991 and his retirement benefits. No oral evidence was adduced by the third respondent. He only relied upon the documents. The petitioner examined a witness as DW1 and they relied upon Exts.B1 and B2 documents. Before the Arbitration Court, the third respondent took up a contention that on 18.05.1991, he received a memo directing to report for duty within 8 days. He sent a reply under certificate of posting and it is without considering the said explanation and his health condition that he was dismissed from service. It was contended that the petitioner Society did not follow the procedure under Rule 198 of the Co-operative Society Rules. Ext.A5 is a copy of reply which is alleged to have been sent by the third respondent to petitioner and Ext.A6 is the photocopy of the receipt for despatching Ext.A5. The petitioner took up a contention that both documents are forged and concocted and cannot be admitted in evidence without examining

¶66

W.P.C. No. 31764 of 2013 -9-

¶67

the third respondent. The Arbitration Court observed that the plaintiff did not enter the witness box and there was no evidence to prove the genuineness of Exts. A5 and A6. Hence the same were rejected as inadmissible in evidence. The Arbitration Court found that the termination of the service of the third respondent is a case of abandonment of job. It is found by the Arbitration Court as under:

¶68

“It is seen from the evidence that the Plaintiff had not reported on duty even on the expiry of the 3 months period from 27.11.1990 for which he had sought leave by leave application dated 01.12.1990, even though the leave was not formally sanctioned and intimated to the Plaintiff. In order to provide ample opportunity to the Plaintiff to resume duty if he so wished, Ext.A4 notice is issued by the Defendant to the Plaintiff in clear and categoric terms that his absence from duty is quite unauthorized and warning that in case the Plaintiff did not report for duty within 8 days of the receipt of Ext.A4 such non reporting would be deemed to abandonment of the job. Ext.B1 shows that the Plaintiff received the Ext.A4 notice. Even after the receipt of Ext.A4 the Plaintiff did not care to report for duty or even submit representation showing his inability if any to report for duty. Under the

¶69

W.P.C. No. 31764 of 2013

¶70

-10-

¶71

circumstances the only option left before the employer is to oust such an employee from the service.”

¶72

The Tribunal while considering the appeal filed by the third respondent observed that though the third respondent had filed leave application for three months from 27.11.1990, no orders were passed on the leave application. In fact the third respondent had denied the allegation that he has committed misappropriation of funds. The Tribunal took note of the fact that in a letter dated 16.5.1991, the Society has stated that a total amount of Rs. 49,651.89 was due from the plaintiff and he was informed that if the said amount is not repaid it will be construed as breach of trust and misappropriation. The third respondent has sent a reply denying the said allegation. The Tribunal found that when there was allegation of unauthorised absence from duty and misappropriation of funds, it was not proper on the part of the Society to have passed the order of dismissal from service on the basis of a mere resolution. It is observed that when serious allegations are raised against an employee, an order of dismissal could be passed only following the procedure established by law, i.e., on compliance of Rule 198 of the Rules. Hence it was found that there was denial of principles of natural

¶73

W.P.C. No. 31764 of 2013

¶74

-11-

¶75

justice. Accordingly, the award passed by the Arbitration Court was set aside, the order of dismissal was set aside and it was held that the third respondent was entitled to get all service benefits from 27.2.1991 and retirement benefits. Following has been stated in the order passed by the Tribunal:

¶76

“13.xxxxxx

¶77

When serious allegations as stated above are raised against an employee the employer can pass order of dismissal only after following the procedure established by law, i.e., Defendant Society had to be complied with Rule under 198 of Kerala Co-operative Societies Rules. In the instant case the Defendant Society has admitted that it had not framed any charge against the Plaintiff, not conducted a domestic enquiry into the above said serious allegations levelled against the Plaintiff and had not constituted a Disciplinary Sub Committee. Without following the above said legal procedures the Defendant is seen to have passed only a resolution dismissing the Plaintiff from the service. The above said acts of the Defendant Society amounts to denial of principles of natural justice. So Ext.A7 dismissal order and A9 order of the Board of Directors of the Defendant Society upholding A7 dismissal order are invalid. If that be so, the finding of the Arbitration Court in the

¶78

W.P.C. No. 31764 of 2013

¶79

-12-

¶80

impugned award that Exts.A7 and A9 Orders are valid is liable to be interfered with. Hence Exts.A7 and A9 orders are liable to be set aside and the Arbitration Case is liable to be allowed holding that Plaintiff is entitled to get all his service benefits from 27.02.1991 (date on which dismissal order came into effect and retirement benefits. I find these points accordingly.”

¶81

Based on the aforesaid factual situation, what is required to be considered is whether there is any requirement to conduct an enquiry by the disciplinary authority before issuing an order of removal from service. No doubt, when disciplinary action is taken against an employee working in a Co-operative Society on allegations of misconduct, necessarily an enquiry is contemplated in terms of Rule 198 of the Rules.

¶82

But the argument of the petitioner is that, the present is not a case of taking disciplinary action on an alleged misconduct, whereas, it is a case of dismissal for abandoning the service. Rule 198 indicates that any member of an establishment of a Cooperative Society may for good and sufficient reasons be punished by imposing penalties including dismissal from service. Rule 198(2) indicates that no kind of punishment shall awarded to an employee, unless he has been informed in writing of the

¶83

W.P.C. No. 31764 of 2013 -13-

¶84

grounds on which it is proposed to take action against and he has been afforded an opportunity, including a personal hearing to defend himself. Sub Rule 2(a) relates to constitution of a Disciplinary Sub Committee and as per rule 2(b) the said Sub Committee shall enquire into charges against an employee, either by themselves or by engaging an external agency.

¶85

The scope of judicial review in such matters are well settled, by a long line of judgments. The Apex Court had occasion to evaluate the case law in UT of Dadra & Nagar Haveli v. Gulabhia M. Lad , [(2010) 5 SCC 775] and held at paragraph 14 as under:

¶86

“14. The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties

¶87

W.P.C. No. 31764 of 2013

¶88

-14-

¶89

assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts .”

¶90

In Indian Railway Construction Co. Ltd. v . Ajay Kumar [(2003) 4 SCC 579] the Apex Court held as under:

¶91

“12. It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not to be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the court to substitute its view for that of the disciplinary authority as if the court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority’s order dispensing with the enquiry. The focus was required to be on the impracticability or otherwise

¶92

W.P.C. No. 31764 of 2013

¶93

-15-

¶94

of holding the enquiry. ”

¶95

Both sides relied upon the judgment in Deepali Gundu

¶96

Surwase' s case (supra) and therefore it will be useful to refer to the factual circumstances involved in the matter. The question considered was whether a person was entitled for wages during the period when she was forcibly kept out of service by the management of the school. After considering the matter in detail, the Apex Court culled out the propositions from the earlier judgments. Paragraph 38 is relevant which reads as under :

¶97

“38. The propositions which can be culled out from the aforementioned judgments are:

¶98

38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

¶99

38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

¶100

38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at

¶101

W.P.C. No. 31764 of 2013

¶102

-16-

¶103

least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

¶104

38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full

¶105

W.P.C. No. 31764 of 2013

¶106

-17-

¶107

back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

¶108

38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

¶109

W.P.C. No. 31764 of 2013

¶110

-18-

¶111

38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees.

¶112

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to

¶113

W.P.C. No. 31764 of 2013

¶114

-19-

¶115

hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.”

¶116

Another judgment relied relied upon is Vijay S. Sathaye (supra). In that case the question examined by the Apex Court was whether the rejection of petitioner's application for Voluntary Retirement Scheme was justified or not. In that case the petitioner submitted an application for VRS on 17.11.1994 and requested for approval of VRS with effect from 12.11.1994. After 12.11.1994, he did not attend duty, whereas he joined another company. His request was rejected relying upon Regulation 12 which indicated that three months' notice is mandatory for applying for VRS. In that background, the Supreme Court observed at paragraphs 11 to 16 as under:

¶117

“11. Even otherwise, the petitioner was asked to continue in service till the decision is taken on his application. However, he did not attend the office of the respondents after 12-11-1994. In view of the above, as the petitioner had voluntarily abandoned the services of the respondents, there was no requirement on the part of the respondents to pass any order whatsoever on his application and it is a clear-cut case of voluntary abandonment of service

¶118

W.P.C. No. 31764 of 2013

¶119

-20-

¶120

and the petitions are liable to be dismissed.

¶121

12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.

¶122

13. In Jeewanlal (1929) Ltd. v. Workmen this Court held as under: (AIR p. 1570, para 6)

¶123

“6. … there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.”

¶124

(See also Shahoodul Haque v. Registrar, Coop. Societies.)

¶125

14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as “retrenchment” from service. (See State of Haryana v. Om Parkash.)

¶126

15. In Buckingham and Carnatic Co. Ltd. v.

¶127

W.P.C. No. 31764 of 2013 -21-

¶128

Venkatiah, while dealing with a similar case, this Court observed: (AIR p. 1275, para 5)

¶129

“5. … Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.”

¶130

A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd.

¶131

16. In Syndicate Bank v. Staff Assn. and Aligarh Muslim University v. Mansoor Ali Khan this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant, Chief Engineer (Construction) v. Keshava Rao and Bank of Baroda v. Anita Nandrajog.”

¶132

The crux of the argument is that, in a case where a person is absent beyond the prescribed period for which leave of any kind is granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities.

¶133

In Regional Manager, Central Bank of India v.

¶134

W.P.C. No. 31764 of 2013

¶135

-22-

¶136

Vijay Krishna Neema and Others (supra), Supreme Court was considering an identical situation where a person having availed of leave and extended leave, did not join service nor did filed any application for extension of leave. Memos issued were returned with endorsement “refused”. As the person did not join duty, show cause notice was issued. Then he filed a representation. Thereafter, the Management issued a letter stating that he had ceased to be in Bank's employment with effect from 9.3.1987, having voluntarily abandoned service. In the background of Clause 16 of Shastri Award, the Supreme Court held that if notice has been issued and despite issuance of such a notice, an employee does not report for duty the consequences will follow. However, in that cases it was found that there was no material to indicate that the notice was actually served on the delinquent and there was a finding by the learned Single Judge who considered the matter before the High Court that the notice was not served upon him.

¶137

Vipin Behari Lal Srivastava (supra) was also a case of unauthorised absence. An enquiry was conducted and he was dismissed from service. The Supreme Court observed that a bare look at the letter issued by the Senior Divisional Manager would

¶138

W.P.C. No. 31764 of 2013 -23-

¶139

show that there was no condonation of absence without leave. On the contrary, it was clearly indicated that no leave was due and even leave without pay cannot be granted. Therefore direction was given to join back immediately, failing which certain presumptions would be drawn, including abandonment of job. Thereafter, relying upon Viveka Nand Sethi v. J&K Bank Ltd , (2005) 5 SCC 337 it was held that the removal of service of the delinquent officer was justified.

¶140

The learned counsel for the respondent relied upon Krushnakant B. Parmar (supra). That was a case in which the appellant was working as a Security Assistant. Enquiry was conducted alleging unauthorised absence. He was removed from service which came to be challenged before the Central Administrative Tribunal. The application came to be dismissed, which was confirmed by the Gujarat High Court. The delinquent officer preferred appeal before the Supreme Court. When the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a Government servant, the question was whether unauthorised absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Government servant. It was observed that such

¶141

W.P.C. No. 31764 of 2013

¶142

-24-

¶143

a question cannot be decided without deciding the question whether there is wilful or compelling circumstances for the absence. It was held at paragraph 16, 17 and 19 as under:

¶144

“16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

¶145

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.

¶146

19. In the present case the inquiry officer on

¶147

W.P.C. No. 31764 of 2013

¶148

-25-

¶149

appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.”

¶150

Further it was held that disciplinary authority failed to prove that the absence from duty was wilful and no such finding has been given by the enquiry officer or the appellate authority. Accordingly, the appeal was allowed setting aside the order of dismissal. In this judgment, the contention urged by the delinquent officer was that he was prevented from signing the attendance register and to attend the office. It is in that background an enquiry was conducted and it was found that there was no evidence for wilful or compelling reasons not to attend duty. However, it was observed at paragraph 17 that “absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful.”

¶151

The first question to be considered in this writ petition on facts is whether it is a case of abandonment from duty. If it is a simple case of abandonment from duty without any leave, it is

¶152

W.P.C. No. 31764 of 2013 -26-

¶153

unauthorised absence and it is open for the Bank to take necessary proceedings in accordance with law. Present is a case in which, show cause notice was issued, as the third respondent was not attending duty in the Factory since 9.11.1990. He was asked to show cause within 7 days as to why disciplinary action should not be taken against him for unauthorised absence. He gave a reply on 21.2.1991 explaining his illness and requesting for 3 months leave. The Management as per letter dated 18.05.1991 sent a reply which reads as under:

¶154

“Your letter of 21.2.1991 is about your failure in applying for leave from 9.11.1990. You have already stated in that reply that you apply for leave only from 27.11.1990 for 3 months. You are well aware that the leave asked for is long over and you are absent since 27.2.1991. Therefore it is clear that you are not interested in your employment in the establishment. For all purposes it has to be presumed you have abandoned your service from this establishment. Your are therefore informed that in case you intent to continue in the service of this establishment you are directed to report for duty within 8 days of the receipt of this communication, failing which it will be deemed that you have abandoned the service of this establishment on the expiry of the period of leave shown in your letter

¶155

W.P.C. No. 31764 of 2013

¶156

-27-

¶157

dated 21.2.1991 which itself is a reply to the letter dated 8.2.1991. from this establishment.”

¶158

It is apparent that the petitioner did not join duty within

¶159

8 days of receiving letter dated 18.5.1991, nor did he give any further explanation in that regard. Though he contended that he had issued Ext.A5, there was no evidence for the same as stated by the Arbitration Court. Hence it has to be inferred that there was no reply to Ext.P4 dated 18.5.1991. The third respondent has no case that he had joined duty on receiving letter dated 18.05.1991. Ext.P5 is the resolution of Management Committee, wherein it is observed that the third respondent was continuously absent since 9.11.1990. He made an application for leave on 27.11.1990 and there is no mention regarding absence from 9.11.1990 to 26.11.1990. Leave application was not supported by a medical certificate. To the notice dated 8.2.1991 a reply was given on 21.2.1991. There was no application for extension of leave from 27.2.1991, on which date the three months' leave period expired. Though a further opportunity was given to him to report for duty as per letter dated 18.05.1991, he did not join duty. Said letter was served on him on 24.5.1991. It was also observed that the Factory is running without a Manager from

¶160

W.P.C. No. 31764 of 2013

¶161

-28-

¶162

2.2.1990 except a few days during which he reported for duty which was adversely affecting the working of the Factory. Hence the Committee held that he had abandoned his job and it was resolved to dismiss him from service with effect from 27.2.1991. It is not in dispute that the Managing Committee has the power to dismiss the employee from service. Ext.P6 dated 10.6.1991 is only a communication, The Tribunal considered the issue in a different angle. Tribunal found that another notice dated 16.5.1991 was issued wherein there was an allegation of misappropriation, in which case an enquiry ought to have been conducted. There is reference to the said letter in Ext.P6 dated 10.6.1991. This letter apparently is a communication of the order of dismissal passed by the Management Committee, wherein it is stated that show cause notice seeking disciplinary action for unauthorised absence and misappropriation of funds were served by notices referred above. Therefore it is clear that two notices were issued, one for misappropriation of funds and other for unauthorised absence. It is stated that the third respondent did not respond to the notices and therefore the Managing Committee treated his absence as self abandonment of job and resolved to dismiss him from service.

¶163

W.P.C. No. 31764 of 2013

¶164

-29-

¶165

The argument of the learned counsel for the third respondent is that, when disciplinary action is contemplated with reference to an allegation of misappropriation of funds and the same is specifically referred to while deciding the appeal as evident from Ext.P8 letter dated 16.10.1991, the Management had ordered dismissal on both the grounds. But a perusal of the Factory Management Committee's decision dated 4.6.1991 does not indicate so. They have only considered the abandonment of job by the third respondent. Of course, reference is made to the other show cause notice dated 16.05.1991 in Ext.P6 and while hearing the appeal, he was questioned about the misappropriation of amounts and failure to report for duty. The Appellate Committee unanimously decided that there was no scope for interference. The appellate authority was only considering the resolution passed on 4.6.1991. Merely for the reason that they had in mind about the other show cause notice by itself would not indicate that the misappropriation was the ground for termination from service.

¶166

In the light of the aforesaid discussion, I am of the view that the Tribunal committed serious error of law in relying upon the letter dated 16.5.1991 issued by the Society in coming to a

¶167

W.P.C. No. 31764 of 2013 -30-

¶168

conclusion that an enquiry was mandatory. A perusal of the decision taken by the Management Committee clearly indicates that the decision to dismiss him from service was only on account of his abandonment of job. The said fact has been clearly indicated by the Arbitration Court also. There is no explanation for unauthorised absence warranting an enquiry. The management had even gone to the extent of permitting him leave upto 27.2.1991. Merely for the reason that no orders were passed in the leave application does not mean that the delinquent officer can be relieved of the responsibility to join duty, at least when the notice dated 18.05.1991 was issued.

¶169

In a case where allegation has been made on the unauthorised absence, the delinquent officer can either show that he was prevented from attending duty and signing the attendance register as was the case in Krushna Kanth B Parma (supra). That is not the situation here. He did not apply for leave initially and as reply to the show cause notice he requested for three months leave. That three months time expired on 27.2.1991, still he did not seek for extension of leave nor any leave was granted by the Management and he did not join duty. Even after giving one more opportunity by letter dated 18.5.1991

¶170

W.P.C. No. 31764 of 2013 -31-

¶171

he did not join duty. These facts clearly indicate that it is a case of abandonment of job and conducting an enquiry in such matters can only treated as an empty formality. When the 3^rd respondent was issued with notice, explanation was sought for, thereafter he was given an opportunity to join duty etc. amounts to compliance of principles of natural justice.

¶172

Rule 198 of the Rules, of course indicates that the Management Committee can conduct an enquiry into the matter. But in a case of a person abandoning service without any valid explanation, the law laid down by the Supreme Court in the cases referred above, especially the judgment in Viveka Nand Sethi' s case (supra) is authority enough to indicate that a limited enquiry as to whether the employee concerned has sufficient explanation for not reporting for duty, after the period of leave had expired or failure on his part on being asked so to do amounts to sufficient compliance with the requirements of principles of natural justice. It is held at paragraph 22 as under:

¶173

“22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash.] The principles of natural justice are required to be complied with having regard to the fact

¶174

W.P.C. No. 31764 of 2013

¶175

-32-

¶176

situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab v. Jagir Singh and Karnataka SRTC v. S.G. Kotturappa.)”

¶177

In the case on hand, by letter dated 18.5.1991 the third respondent was given an opportunity to join duty within 8 days. Even then, he did not comply with the said request and there was no explanation for the same. Hence the finding of the Tribunal in that regard was absolutely baseless.

¶178

The Tribunal directed payment of back wages only on the ground that the order of dismissal was passed without conducting any enquiry. On account of the aforesaid findings the said direction is also liable to be set aside.

¶179

In the result, the writ petition is allowed. Ext.P15 judgment of the Tribunal is set aside, confirming the view taken by the Arbitration Court in ARC No.117 of 2008.

¶180

sd/

¶181

A.M. SHAFFIQUE, JUDGE

¶182

kp/-

The Thodupuzha Taluk Co-Operative Rubber Marketing Society v. the Kerala Co-Operative Tribunal

Case brief

What is this about?

What did the court decide?

The Thodupuzha Taluk Co-Operative Rubber Marketing Society v. the Kerala Co-Operative Tribunal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Kerala Vs the Manager, Kottathalasurendran Memorial Vocational Higher Secondary School

M.Sudhakaran Vs Mr. Manjith Lal

Peekay Roller Flour Mill & Others Vs Kerala State Civil Supplies Corporation

Shiney T. Thomas Vs State of Kerala

B.Jayalakshmi Vs Sri.Satyajith Rajan, Secretary, Dept. of Revenue

Sreekanth Sagar Vs the Kerala Small Industries Development Corporation Ltd.