Writ Appeal No.1051 of 2018 and Cross Objection No:152 of 2018 (South Indian Bank Head Office v Central Government Industrial Tribunal & Others; K.P. Davis; Government of India)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI &** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944** ## **WA NO. 1051 OF 2018** **WPC 12945/2010 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** SOUTH INDIAN BANK HEAD OFFICE, PB NO.28, TB ROAD, THRISSUR-680001, REP. BY ITS GENERAL MANAGER. BY ADVS.SRI.SAJI VARGHESE SMT.MARIAM MATHAI ## **RESPONDENT/S:** 1 CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL KARSHAKA ROAD, ERNAKULAM-682036. 2 K.P.DAVIS 'KOOLA HOUSE', KODAKARA P.O., THRISSUR DISTRICT, PIN-680684. 3 GOVERNMENT OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF LABOUR, NEW DELHI-110001. BY ADVS. SRI.B.ASHOK SHENOY CGC, SHRI PREMJITH ## **OTHER PRESENT:** ADV. GIRISH P.S. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, ALONG WITH CROSS OBJECTION 152/2018. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA.1051 OF 2018 & CO 152/2018** -2- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 CO NO. 152 OF 2018** **WA 1051/2018 OF HIGH COURT OF KERALA** ## **PETITIONER/S:** K.P. DAVIS AGED 65 YEARS SON OF K.D.PYLOTH, KOOLA HOUSE, P.O., KODAKARA-680 684, NOW RESIDING AT POONISSERY-MAVINCHUVADU, P.O., KALLUR-680 317, THRISSUR DISTRICT. BY ADVS. B.ASHOK SHENOY K.V.GEORGE P.N.RAJAGOPALAN NAIR P.S.GIREESH RIYAL DEVASSY ## **RESPONDENT/S:** THE SOUTH INDIAN BANK LTD. HEAD OFFICE, P.B.NO.28, TB ROAD, THRISSUR-680 001, REPRESENTED BY ITS GENERAL MANAGER. BY ADV SAJI VARGHESE THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, ALONG WITH WA 1051/2018. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA.1051 OF 2018 & CO 152/2018** -3- # **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - # **Writ Appeal No.1051 of 2018 and Cross Objection No:152 of 2018** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 8[th] day of March 2023) ## Basant Balaji J., The appellant was the petitioner and the respondents were the respondents before the learned Single Judge. The parties are referred to as they appearing in the Writ Petition. 2. The Writ Petition was filed by the petitioner for calling for records of Ext.P2 award of the Central Government Industrial Tribunal cum Labour Court in I.D.No.16 of 2007. The 2[nd] respondent was working as a **WA.1051 OF 2018 & CO 152/2018** -4- clerk in the petitioner bank. As he was unauthorisedly absent, he was issued with chargesheet dated 17.11.2004, the charges reads as follows:- 1) that you absented from deity without leave during the under noted days: From 13.10.2004 to 19.10.2004 2) that you are absenting from duty unathorizedly from 25.10.2004 onwards still this date. 3) That you committed the aforesaid acts in disregard of the warning Memos issued to you earlier for committing misconducts of such nature. 4) that disobeying the reasonable and legal orders of your official superior namely the Asst. General Manager of Bank's Persomel Dept. to join for duty vide Memo PER DS:M: 56: 0405 dated 06.11.2004 you failed to join duly till this date 5) That you failed to join duty as stated in Charge No. 4 above inspite of the fact that you were found physically fit for discharging your duties as evidenced from the Medical Examination Reports dated 26-10-2004 and 04.11.2004 given ” by 2 Doctors after conducting Medical Examinations. Though the 2nd respondent submitted its explanation to the chargesheet, since the explanation was not satisfactory, an enquiry was ordered and the enquiry officer, after conducting the enquiry strictly following the principles of **WA.1051 OF 2018 & CO 152/2018** -5- natural justice imposed a punishment of dismissal from service. Against the order of dismissal the 2[nd] respondent placed an industrial dispute and on failure of the conciliation proceedings, the dispute was referred for adjudication to the 1[st] respondent. The labour court, by Ext.P2 award held that the misconduct alleged and proved against the 2[nd] respondent is only a minor misconduct and therefore the punishment imposed is not commensurate with the misconduct and therefore the punishment was reduced to stoppage of increment for a period not longer than six months and directed reinstatement with back wages and all other consequential benefits. Impugning the Award of the Labour court, the Writ Petition was filed by the bank. 3. The learned Single Judge concurred with the **WA.1051 OF 2018 & CO 152/2018** -6- finding of the Labour court and held that it is only a minor misconduct which does not warrant dismissal. Invoking section 11A of the Industrial Disputes Act, the Labour court has reduced the punishment from that of dismissal to barring of increment and directed reinstatement. The learned Single Judge found that the major misconduct as per the Bipartite settlement would also include willful insubordination or disobedience of any lawful order of the management or the superior. So once the charge stands proved, the Tribunal was not justified in converting the finding of fact as a minor misconduct. The Tribunal is justified in interfering with the punishment, if it is found the findings entered by the enquiry officer is perverse or without evidence. The Tribunal has not found so. Therefore, the Tribunal was not justified in converting the punishment imposed to that of reinstatement the barring of **WA.1051 OF 2018 & CO 152/2018** -7- increment. The learned Single Judge found that the charge proved against the 2[nd] respondent would fall in a major misconduct and therefore, the punishment imposed by the labour court was modified to that of a compulsory retirement with superannuation benefits as referred to clause in 6(c) of Bipartie Settlement. It was also clarified that bank cannot recover the 17B back wages paid to the 2[nd] respondent. As per Ext.P1 charge memo the 4[th] charge is regarding disobeying the reasonable legal orders of the superiors and 5[th] charge states that in spite of the fact that delinquent was found physically fit by two doctors after conducting medical examination to discharge to duty, he failed to join duty. 4. The counsel for the appellant Bank relied on the decision of the Apex court in **State of Rajasthan and another v. Mohd. Ayub Nas (2006 (1) SCC 589]** and **WA.1051 OF 2018 & CO 152/2018** contended for the proposition that an employee remaining absent from service without intimation. After disciplinary enquiry, entering into a finding on facts, dismissed the employee from service the Apex Court held that the High court should not have reduced the punishment of reducing to compulsory retirement with all retiral benefits. It was the case in which the absenteeism was for a period of 3 years without intimation. Taking note of the facts and circumstances of that case, the Apex Court held that it was not proper for the High Court to modify the punishment. 5. From Ext P1 charge memo it can be seen that 5 charges are charged against the 2[nd] respondent. Going Ext.P1 charge sheet, the period of absent is only from 13.10.2004 to 19.10.2004 and from 25.10.2004 til 17.11.2004. Therefore, the facts of the case stated above is **WA.1051 OF 2018 & CO 152/2018** -9- totally different and therefore, the dictum laid down in the above case cannot be applicable to the facts of this case. 6. As stated above, wilful disobedience of insubordination is a major misconduct under the bipartie settlement. Since the charges 4 and 5 are proved in the enquiry,the learned Single Judge was of the opinion that the Tribunal was not justified in converting the finding of major misconduct to a minor misconduct. We fully concur with the finding entered by the learned Single Judge and the grounds raised do not warrant any interference. Therefore, the Appeal fails. The Cross Objection is filed by the 2[nd] respondent against the finding entered by the learned Single Judge that misconduct committed by him is not a minor misconduct, but a major misconduct going by the provisions contained **WA.1051 OF 2018 & CO 152/2018** in the Bipartie settlement. We concur with the finding entered by the learned Single Judge to the effect that the misconduct is a major misconduct. We have held that the learned Single Judge was justified in interfering with Ext.P2 Award and modifying the judgment. In view of the above said findings, the Cross Objection does not survive and it is to be dismissed. Accordingly, we do so. In the result, the Writ Appeal and Cross Objections are dismissed. ## **SD/-** ## **S.V.BHATTI,JUDGE** **SD/BASANT BALAJI, JUDGE** _dl/_