IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 OP.No. 22993 of 2002(K) -------------------------------- PETITIONER: ------------------ K.J. JOHN, THEENALIL (PULICKAL) VAYALAR EAST P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.P.RAMAKRISHNAN SRI.A.JAYASANKAR RESPONDENTS: ----------------------- 1. STATE BANK OF INDIA REPRESENTED BY ITS DEPUTY GENERAL MANAGER, ZONAL OFFICE SHANMUGHAM ROAD, ERNAKULAM, KOCHI - 682 031. 2. INDUSTRIAL TRIBUNAL, ALAPPUZHA. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.GEORGE THOMAS(MEVADA), SC, SBI - R.1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.22993/2002-K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AWARD DATED 17/11/2001 IN I.D.NO.63/99 PASSED BY THE 2ND RESPONDENT EXT.P2: COPY OF DISCHARGE SUMMARY ISSUED FROM G.G.HOSPITAL, THIRUVANANTHAPURAM. EXT.P3: COPY OF THE SCAN REPORT DATED 15/04/2002 ISSUED FROM DEVI SCANS (P) LTD., THIRUVANANTHAPURAM. EXT.P4: COPY OF THE EXPERT OPINION DATED 15/04/2002 GIVEN BY DR. K.BHAVADASAN. EXT.P5: COPY OF THE LETTER DATED 10/07/2002 FROM THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: EXT.R1A: COPY OF THE REJOINDER DATED 03/07/1991. EXT.R1B: COPY OF THE CLAIM STATEMENT DATED 17/02/2000. EXT.R1C: COPY OF THE STATEMENT OF R1 DATED 06/09/2000. EXT.R1D: COPY OF REPORT DATED 25/06/2002. // TRUE COPY // Rs/ S.SIRI JAGAN, J ============== W.P.(C).No. 22993 OF 2002 ==================== Dated this the 17th day of July, 2008. J U D G M E N T The workman in I.D.No.63/1999 before the Industrial Tribunal, Alappuzha has come up with this writ petition challenging Ext.P1 award passed by the Tribunal in that I.D. The issue referred for adjudication was as follows: “Whether the action of the Management of State Bank of India is justified in denying the employment to Sri. K.J.John, clerk of erstwhile Bank of Cochin Ltd., on the ground that he voluntarily abandoned his services by continuously absenting with effect from 17.9.1984? If not, to what relief the concerned workman is entitled to ?” 2. A difficult situation arises here. The workman was allegedly denied employment while he was a clerk under the erstwhile Bank of Cochin, which was amalgamated with the State Bank of India. At the time of amalgamation, the petitioner was not in service. Therefore, State Bank of India was in the hapless situation of defending this case, after they took over Bank of Cochin without proper records or details of the petitioner. 3. It is an admitted fact that the petitioner was absent from work for quite some time. His only defence was that he W.P.(C).No. 22993 OF 2002 2 was suffering from a stomach ailment, which kept him out of employment. The petitioner was absenting from duty from 17.9.1984 onwards without any intimation or authorisation from the management. This forced the management to issue a memo on 18.10.1984 calling upon the petitioner to report for duty failing which it was stated that disciplinary action would be taken against him. The petitioner did not report for duty pursuant thereto, instead his father submitted a leave application which was not acted upon, as there was no provision for the same. The petitioner continued to be absent from duty. Again the management issued a memo on 18.12.1984 stating that his action amounted to serious misconduct. The petitioner's father replied along with a medical certificate from a Senior Medical Officer of the Government Ayurveda Hospital. Neither the letter nor the medical certificate revealed that the petitioner was unfit to write or move. From his service records it is noted that the petitioner was in the habit of availing of leave frequently on medical grounds. Earlier a public notice was issued directing the workman to report for duty and the petitioner had not reported pursuant thereto. Later on, the petitioner reported for duty in W.P.(C).No. 22993 OF 2002 3 the Head Office on 25.2.1985 and submitted a representation requesting him to allow to join duty from 26.2.1985 which was not acceded to. Long thereafter in 1990, the petitioner submitted a complaint before the Labour Officer raising an industrial dispute which resulted in the I.D. in which Ext.P1 award was passed. 4. The Tribunal examined the question as to whether there is any abandonment of employment. The Tribunal accepted it as a fact that the workman was absent for quite a long time without any justification. But the Tribunal came to the finding that that is not a ground to come to the conclusion that there was abandonment of employment on the part of the petitioner. Therefore, the Tribunal came to the finding that the non-employment of the workman from 1990 is punitive in nature and therefore unsustainable. But taking into account the fact that the petitioner was unauthorisedly absent for years together, the Tribunal held that he cannot be given employment without appropriate punishment. Purportedly, invoking powers under Section 11A of the Industrial Disputes Act, the Tribunal held that forfeiture of full back wages and seniority and the service W.P.(C).No. 22993 OF 2002 4 benefits from 17.9.1984 till commencement of the award would be a suitable punishment in this regard. However, taking into account the fact that it is not certain from the materials on record as to whether the workman has sound physical and mental health to discharge the duties of a clerk in the Bank, the Bank was authorised to get the petitioner examined by a panel of Doctors to ascertain the soundness of health at present. It was directed that if the health of the petitioner is satisfactory, the management shall reinstate the workman with effect from the date of commencement of operation of the award as per law without any back wages, seniority or service benefits or any other benefit for the period from 17.9.1984 till the date of reinstatement. It was further held that if the health status is not satisfactory, the workman will not be eligible to any of the above reliefs. The said award is under challenge before me. 5. It appears that subsequently the management convened a Medical Board and examined the petitioner. On such examination, by Ext.R1(b), a medical team consisting of 3 Doctors came to the conclusion that the petitioner was not in a sound state of mind to carryout his official duties. W.P.(C).No. 22993 OF 2002 5 6. Arguments were advanced on both sides in support of their respective cases. But I am not satisfied that the award was in terms of the issue referred for adjudication. No issue regarding validity of punishment imposed on the workman was referred for adjudication, which was, what was decided in the award. The management also had no case that any disciplinary action was taken against the workman which resulted in any punishment imposed on him. It appears that it was difficult for the Tribunal to come to the conclusion regarding denial of employment. At one place in the award, the Tribunal even expressed doubt about his state of health and as to whether he would be able to discharge his duties properly. Probably, that is why the Tribunal took this course of action, perhaps, knowingly, because of the peculiar factual situation. Normally, in view of the fact that the award is not in terms of the issue referred for adjudication, I should set aside the award and remand it for fresh consideration by the Tribunal in accordance with law. But, I do not think that it would be to the advantage of either of the parties, in the very peculiar facts and circumstances of the case. There appears to be fault on both sides which contributed to the W.P.(C).No. 22993 OF 2002 6 situation obtaining. It is also almost certain that the petitioner is not in the best of healths to discharge his duties in the Bank satisfactorily. Therefore, I am of opinion that instead going through a lengthy process of re-adjudication before the Tribunal, the matter should be given a quietus by directing the Bank to give the workman a lump sum amount as compensation. Taking into account all the facts and circumstances of the case, I fix that amount as Rs.50,000/-. That amount shall be accepted by the workman in full and final settlement of all his claims against the Bank. The Bank shall pay the above said amount to the petitioner within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE bkn/-