P. J. Antony v. The Chairman, The South Indian Bank Ltd. (Head Office), Trichur, and Industrial Tribunal, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932** **WP(C).No. 34090 of 2004(G)** **----------------------------------------** **PETITIONER(S):** **---------------------** **P.J. ANTONY, POOPADI HOUSE, SIVAGAMI NAGAR, THANKAKKLAM P.O., MADURAI, TAMIL NADU- 625 006.** **BY ADV. SRI.PAULSON C.VARGHESE, SRI.C.ARUN PRASANTH.** **RESPONDENT(S):** **--------------------------** **1. THE CHAIRMAN, THE SOUTH INDIAN BANK LTD. HEAD OFFICE, TRICHUR- 683 101** ## **2. INDUSTRIAL TRIBUNAL, PALAKKAD.** **R1 BY SRI.M. PATHROSE MATHAI, SENIOR ADVOCATE, ADV. SRI.SAJI VARGHESE. SRI.RONY J.PALLATH. R2 BY GOVT. PLEADER SMT.RANI DIOTHIMA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **WP(C) NO. 34090/2004-G** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE AWARD OF THE 2ND RESPONDENT IN ID NO.28/02 (C).** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **rs** ## **K.SURENDRA MOHAN, J. ------------------------------------------W.P.(C) No.34090 of 2004 ------------------------------------------Dated this the 17[th] February, 2011** ## **JUDGMENT** The petitioner has filed this writ petition challenging Ext.P1 award of the Industrial Tribunal, Palakkad by which, the punishment of dismissal imposed on the petitioner has been upheld. 2. The petitioner was working as a Peon in the South Indian Bank. While so, disciplinary action was initiated against him on the ground that he had absented from duty without leave continuously from 20.9.1999. Though he was required by letter dated 22.12.1999 to join duty by the Branch Manager, he did not do so. Thus, he had absented from duty without intimation or application for leave of absence continuously for a period exceeding 30 days. A domestic enquiry was conducted against him on the above charges. The petitioner co-operated with the enquiry and defended himself. He was represented by an office bearer of the union in which he was a member. The domestic enquiry held that he was guilty of the charges against him. WPC No.34090/2004 2 Thereafter, he was dismissed from service. The petitioner raised an industrial dispute with respect to his dismissal. 3. The dispute between the petitioner and the Management was the subject matter of I.D.No.28/2002 of the Industrial Tribunal, Palakkad. The Industrial Tribunal considered the matter and found that the domestic enquiry conducted against the petitioner was proper. The punishment imposed on the petitioner was also found to be justified in the facts and circumstances of the case. The petitioner has filed this writ petition challenging the award of the Industrial Tribunal, Ext.P1. 4. According to Sri.Paulson C.Varghese, the learned counsel for the petitioner, the charges against the petitioner were not grave enough to justify the capital punishment of dismissal from service. He was only working as a sub staff or a Peon and there were no allegations of misappropriation or other misconduct against him. Therefore, it is contended that the Management was very harsh in dismissing him from service. It is pointed out that punishment of a lesser magnitude could have been imposed on him and the same would certainly have served the purpose. 5. The counsel for the first respondent on the other WPC No.34090/2004 3 hand pointed out that the petitioner was guilty of chronic absenteeism. In fact, he had been indulging in such conduct, continuously without any remorse. He had been charge sheeted nineteen times for absenting without leave. Eight times, he had been punished for unauthorised absence. His back file shows that the lesser punishment of barring his increments had been imposed on him in the past. However, he did not mend his ways. Therefore, the Management was constrained to dismiss him from service. The punishment was imposed after following all established procedures. The domestic enquiry that was conducted has been held to be proper by the Industrial Tribunal. It is therefore contended that there are no grounds to interfere with Ext.P1 award. He, therefore, prayed for dismissal of the writ petition. 6. The Industrial Tribunal has perused the back files of the petitioner and has marked the same as Ext.M2 in I.D.No.28 of 2002. The file shows that 19 memos had been issued to him in the past and that he had been punished eight times for similar misconduct or unauthorised absence. It has also been noticed that as per memo dated 20.11.1996, he was awarded the punishment of stoppage of one future increment for a period of six months with cumulative effect. In spite of WPC No.34090/2004 4 the above proceedings, the petitioner has repeated the very same misconduct. Therefore, the Industrial Tribunal has found that the punishment was perfectly justified. The Tribunal has also found that the petitioner had been given all opportunities to defend himself during the domestic enquiry. He was properly represented by a union official and he had cross examined all the witnesses. For the above reasons, the Tribunal found that the proceedings against the petitioner was perfectly justified. 7. The counsel for the petitioner Sri.Paulson C.Varghese relied on the decision of the Apex court in **Union of India and others** v **Giriraj Sharma** reported in 1994-1-LLJ 604 (SC). That was a case in which an employee has sought for extension of his leave by 12 days which was rejected. For overstaying the said period of 12 days, his services were terminated. The Apex Court held that the punishment of dismissal for overstaying the period of 12 days, on account of unexpected circumstances that were not controverted in the counter was harsh, especially so, since the circumstances showed that it was not his intention to wilfully flout the order. The said decision has no application to the facts of the present case for the reason that the petitioner has been in WPC No.34090/2004 5 the habit of continuing to commit the very same offences over a long period of time. In yet another decision, **Ashok Kumar** v **Union of India and another** 1988-1-LLJ 344 (SC), termination of service for unauthorised absence for a period of three days without leave was held to be grossly disproportionate to the charges against the employee. The counsel for the petitioner has also relied on the decision in **Ramu** v **District & Sessions Judge, Kolar and others** 1990-1-LLJ 137)(Karnataka) which also is a decision to the same effect. In **Syed Zaheer Hussain** v **Union of India and others** 1999-1-LLJ 876 (SC), the Supreme Court has held that the punishment of dismissal of an employee for unauthorised absence for seven days was too harsh. It is to be noted that in all the above cases, the period of absence was only very small and therefore it was held that a lesser punishment could have been imposed on the delinquent employee. However, the same is not the situation in the present case. 8. In **L & T Komatsu Ltd.** v **N.Udayakumar** 2008(1) SC 224 where the employee remained absent for a period of 105 days, it has been held that habitual absenteeism is gross violation of discipline. Therefore, the orders of the Labour WPC No.34090/2004 6 Court and the High Court directing reinstatement were set aside. The counsel for the first respondent has placed reliance on another decision of the Apex Court in **Regional Manager, Bank of Baroda** v **Anita Nandrajog** 2009(9) SCC 462, where the delinquent employee had left India to join her husband for a period of seven months initially whereupon the Bank took a lenient view and condoned her absence. But, when she again repeated the offence by sending an application for leave for 60 days and absenting from duty, it has been held that no establishment can function if it allows its employees to behave in such a manner. Therefore, the punishment of termination of service imposed on the delinquent employee was found to be justified. In another decision **Chairman and Managing Director, VSP and others** v **Goparaju Sri Prabhakara Hari Babu** 2008(5) SCC 569 where an employee remained absent for a period of 99 days on the first occasion and 20 days on the second occasion, the Apex Court held that the punishment of dismissal was justified. The Apex Court has also cautioned in paragraph-20 and 21 in the following words: “20. The jurisdiction of the high Court in this regard WPC No.34090/2004 7 is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. (See Maruti Udyog Ltd. v Ram Lal; State of Bihar v Amrendra Kumar Mishra; SBI v Mahatma Mishra; State of Karnataka v Ameerbi;State of M.P. v Sanjay Kumar Pathak and Uttar Haryana Bijli Vitran Nigam Ltd. v Surji Devi.) 21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v Union of India).” 9. In the light of the principles laid down by the decisions referred to above, there can be no doubt that the punishment imposed on the petitioner is justified in the facts and circumstances of the present case. I do not find any ground to interfere with the award challenged in this writ petition. In the above circumstances, this writ petition fails and is accordingly dismissed. No costs. ## **K.SURENDRA MOHAN, JUDGE** css/