IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 32983 of 2009(P) -------------------------- ID.2/2007 of LABOUR COURT, ERNAKULAM .................... PETITIONER(S): --------------- THE FEDERAL BANK LTD. HEAD OFFICE, ALUVA-1, REPRESENTED BY ITS MANAGING DIRECTOR & CEO. BY ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): --------------- 1. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, KARSHAKA ROAD, ERNAKULAM COCHIN-16. 2. FEDERAL BANK STAFF UNION REPRESENTED BY ITS GENERAL SECRETARY, BANK JUNCTION ALWAYE 683 101. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.32983 of 2009 ================== Dated this the 19th day of November, 2009 J U D G M E N T The petitioner is the management in I.D.No.2/2007 before the Central Government Industrial Tribunal-cum-Labour Court, Ernakulam. 2. The issue referred for adjudication was; “Whether the action of the management of Federal Bank in dismissing the services of Smt.Mini Joseph from its services w.e.f. 03.05.2005 on account of unauthorised absenteeism is fair and justifiable? If not, to what relief she is entitled to?” 3. The Tribunal, after analysing the evidence adduced before him, came to the finding that the misconduct of unauthorised absence, for which the workman was dismissed from service, was proved. But on the same set of facts constituting the misconduct of unauthorised absence, the management had also held that the workman had committed the misconduct of willfully disobeying the directions of the management. The Tribunal found that the inference that unauthorised absence also constitutes the misconduct of wilful disobeyal of the directions of the management is not sustainable. The Tribunal also found that the misconduct of unauthorised absence for 249 days in different spells not exceeding 30 days at a time, does not justify the imposition of punishment of dismissal from service and directed the management to reinstate the workman with backwages and all consequential benefits, but imposing on the workman the punishment 2 of stoppage of increment for a period of six months with cumulative effect. Ext.P4 is the award of the Tribunal. That is under challenge before me. 4. The contention of the counsel for the management is that the fact that the workman unauthorisedly absented would go to show that she had remained absent willfully disobeying the direction of the management. But from the award I find that the Tribunal has found that whenever the management directed the workman to rejoin duty, she joined duty, but again applied for leave, which leave was not sanctioned. As such, the unauthorised absence cannot give rise to an automatic inference that the workman had wilfully disobeyed the direction of the management. When the management directed the workman to appear before the company medical officer as well as before the Amrutha Institute Medical Sciences, the workman promptly appeared before the doctors. Therefore, it is evident that the workman had no intention to disobey the lawful orders of the management. She again applied for leave only because of, according to her, she was not well enough to work. She had her own reason for not attending work and she applied for leave. I am not satisfied that that will lead to an automatic conclusion that there was wilful disobeyal of the direction of the management also. I am also of opinion that the misconduct of unauthorised absence in so far as it has not been an habitual absence without leave is only a minor misconduct, even going by the clauses in 3 the bi-partite settlement, which are extracted in the award itself. For such a misconduct dismissal from service is shockingly disproportionate to the gravity of the misconduct. Therefore, I do not find anything perverse in Ext.P4 award, which is under challenge in this writ petition. Accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge