IMPORTANT POINT
Unauthorized absence from duty does not equate to abandonment if the employee is prevented from returning due to compelling circumstances.

JUDGMENT :

WP(C) No.24620/2018 challenges the judgment passed by the Kerala Co-operative Tribunal, Thiruvananthapuram in Appeal No. 84/2017, while WP(C) No.26004/2018 seeks implementation of the directions in the said judgment.

2. Brief facts necessary for the disposal of the writ petitions are as follows: WP(C) No.24620/2018 is filed by the Bank, a co-operative society registered under the provisions of the Kerala Co-operative Societies Act , 1969, and the second petitioner is its Board of Directors. The first respondent entered the service of the society on 23.4.1983 and during 1994, while working as an Accountant, went abroad on Leave Without Allowance from 1.4.1994 initially for 5 years and thereafter, from 1.4.1999 to 31.3.2004. After the expiry of the leave on 31.3.2004 as aforesaid, he was supposed to join back service on 1.4.2004 and since he did not join after the expiry of leave, a notice was issued, which was returned with the endorsement “Addressee left”. To a further notice issued to the petitioner on 2.4.2005, the first respondent replied that he was not able to appear on medical grounds.

3. The first respondent, contending that he had worked from 1.4.2004 to 27.4.2004 and from 28.4.2004 onwards he was not permitted to sign the attendance register, moved the Assistant Registrar, Kothamangalam on 3.5.2004, in which an order was passed on 17.7.2004, permitting the first respondent to join service and to treat the period of absence as loss of pay. Writ petitions were filed challenging the said order of the Assistant Registrar, and WP(C) No.22571/2004 was filed by the first respondent seeking implementation of the order of the Assistant Registrar. This Court through judgment dated 10.10.2006 in WP(C). No.22571/2004 (produced as Ext.P2 in WP(C). No. 26004/2018) set aside the order of the Assistant Registrar and relegated the parties to approach the Kerala State Co- operative Arbitration Court ('The Arbitration Court' for short). Accordingly, the employee/first respondent filed an arbitration case A.R.C.No.71/2006 on 23.12.2006, which was dismissed as per Ext.P2 award on 5.7.2012.

4. The employee filed Ext.P3 appeal, which resulted in Ext.P4 judgment of the Kerala Co-operative Tribunal allowing the appeal and remanding the matter back to the Arbitration Court with the following directions:

“In the result, this Appeal is disposed of as follows:

1. The impugned award is set aside.

2. The Arbitration Case is remanded back to the Co-operative Arbitration Court, Thiruvananthapuram for fresh disposal in accordance with law.

3. The Arbitration Court shall consider Ext.A23 Audio CD after satisfying its genuineness.

4. The parties are allowed to adduce further evidence to substantiate their case.

5. Parties shall appear before the Co-operative Arbitration Court, Thiruvananthapuram on 15-02-2014.

6. As the Arbitration Case is of the year 2006 the Arbitration Court is directed to dispose of the same as expeditiously as possible.”

It is contended that the employee did not take any steps for two years, and it was only on 12.1.2016 that Ext.P5 affidavit producing Ext.A23 Audio CD was filed before the Arbitration Court. Through Ext.P6 order dated 16.6.2016, the Arbitration Court again dismissed the employee's case.

5. The same was again challenged by the employee before the Tribunal, which, through Ext.P8 order impugned in WP(C) No.24620/2018 allowed the appeal, directing reinstatement with back wages. It is seeking implementation of the same that the connected writ petition, WP(C) No. 26004/2018, is filed by the employee.

6. The learned counsel appearing for the Bank submitted that the first respondent/employee ought to have joined after the expiry of the period of leave and the act of not joining constituted misconduct and appropriate action was taken by the Bank. Thereafter, the employee never joined and therefore, this was a case where he voluntarily abandoned the employment. It was also stated that there was nothing to prove Ext.A23 Audio CD