Indian Overseas Bank vs The General Secretary

P.R. Shivakumar, J.

Heard Mr.K.Srinivasa Murthy, learned counsel appearing for the appellant and Mr.C.R.Chandrasekaran, learned counsel appearing for the first respondent.

This writ appeal has been filed against the order of the learned Single Judge dated 22.2.2013 made in W.P.No. 34042 of 2002, wherein the first respondent had challenged the Award dated 17.9.2001 made in I.D.No. 422 of 2001.

The case of the first respondent is that one I.Rajendran, joined the service of the appellant''s Bank as sub-staff on 16.1.1970 and later he was promoted as Record Keeper and was lastly working at Kumbum Branch as Record Keeper. While working as Record Keeper in Kumbum Branch, the first respondent absented from duty from March, 1992. Due to his absence without prior permission, the appellant Bank took his absence as an option for voluntary retirement and passed an order on 24.4.1993 to the effect that the first respondent had voluntarily retired from the appellant Bank''s services on his own accord with effect from 19.4.1993.

The appellant Bank raised a Dispute before the Conciliation Officer. On failure of conciliation, the dispute was referred to the Tamil Nadu State Industrial Tribunal and the same was taken on file by the Tamil Nadu State Industrial Tribunal in I.D.No. 13 of 1997. Later, as per the order of the Ministry of Labour, Government of India, dated 10.2.1997, the said I.D.No. 13 of 1997 was referred to the Central Government Industrial Tribunal-cum-Labour Court, Chennai and the Central Government Industrial Tribunal-cum-Labour Court, Chennai took the case on its file as I.D.No. 422 of 2001.

The Tribunal on consideration of the oral evidence and documentary evidence produced by the first respondent as well as the appellant Management, held that the order of the appellant Management treating the absence of the first respondent as voluntary cessation of employment with effect from 19.4.1993 to be justified and dismissed I.D.No. 422 of 2001 on 17.9.2001. Aggrieved over the said Award, the first respondent filed W.P.No. 34042 of 2002.

The learned Single Judge of this Court, by order dated 22. 2.2013, held that the workman (I.Rajendran) was suffering from mental ill-ness and left the place of his family, pursuant to which, his wife also lodged a complaint to the Police and paper publication was also effected and that under such circumstances, his absence could not be treated as wilful inviting the extreme penalty of holding his absence to be voluntary retirement. Taking into account the fact that no enquiry was conducted, the learned Single Judge held that the order of the Central Government Industrial Tribunal-cum-Labour Court to be vitiated and the punishment in the form of holding his absence to be voluntary retirement was extremely harsh. Also taking note of the fact that meanwhile the workman had attained the age of superannuation on 07.3.1991, the learned Single Judge chose to pass an order setting aside the Award dated 17.9.2001 made in I.D.No. 422 of 2001 and directed the appellant Management to pay the terminal benefits to the said workman as expeditiously as possible. As against the said order of the learned Single Judge, the present appeal has been filed by the Bank Management.

Heard both sides and also perused the typed set of papers filed. The learned Single Judge has rendered a finding that there was no opportunity given to the workman by conducting enquiry before passing the impugned order. It is also stated that the workman was also suffering from mental ill-ness and his absence could not be treated as wilful absence.

Though many grounds were raised in the grounds of appeal, the learned counsel for the appellant mainly argued that even for the purpose of calculating and paying the terminal benefits, the period during which the workman was absent and the period of non- employment should be excluded.

We are not in a position to accept the above contention of the learned counsel for the appellant, in view of the fact that no enquiry was conducted before passing the order of retirement particularly when the absence of the workman was not wilful. Hence, we are inclined to clarify the order of the learned Single Judge to the effect that the entire period of absence and the period of non-employment in the post of Record Keeper should be treated as duty for the purpose of calculating gratuity, pension and other retirement benefits except backwages. The appellant Management is directed to do the said exercise of calculating the gratuity, pension and other retirement benefits and pay the same to the first respondent, including the arrears of pension payable from the date of retirement, within a period of four weeks from the date of receipt of a copy of this judgment, after adjusting a sum of Rs. 92,691.24, which was already paid to the first respondent, treating the concerned workman is deemed to have opted for pension scheme, which according to the first respondent he has already done.

With the above modification and directions, the writ appeal is disposed of. No costs. Consequently, M.P.No. 1 of 2013 is closed.