STATE BANK OF INDIA Vs. WORKMENS COMPENSATION COMMISSIONER

JUDGEMENT

(1.) The point for decision in this writ petition is whether it is the date of the order of dismissal passed by the Disciplinary Authority or the date of disposal of the appeal therefrom provided under the contract of employment by the Appellate Authority that has to be considered to be the starting point for reckoning the time within which an appeal is required to be filed under S.18(2) of the Kerala Shops and Commercial Establishments Act, 1960 (Act 34 of 19 60), for short the Act, read with R.3 of the Kerala Shops and Commercial Establishments Rules, 1961, for short the Rules. Sub-s.(1) of S.18 of the Act lays down the conditions without the compliance of which no employer could dispense with the services of an employee employed continuously for a period of not less than six months. Sub-s.(2) of that section reads:

(2.) Now the facts: The 1st petitioner is the Regional Manager I, State Bank of India, Trivandrum; and the 2nd petitioner, the Branch Manager, State Bank of India, Alleppey. The 1st respondent is the Workmen's compensation Commissioner (Appellate Authority under the Act), Trivandrum and the 2nd respondent is Sri Sadanandan who was working as a Messenger attached to the Alleppey Branch of the State Bank. The 2nd respondent was dismissed from service as per the order of the 1st respondent dated 14-6-1976, a true copy of which is Ext. P1. Ext. P1 order was communicated to the 2nd respondent who acknowledged the receipt thereof on 21-6-1976. Ext. P-2 is the copy of the order dated 6-12-1977 passed by the Chief Regional Manager of the State Bank of India, Bangalore, dismissing the appeal filed by the 2nd respondent under Para.521(12) of the Sastry Award read with Para.18.28 of the Desai Award against Ext. P1 order. Thereafter, on 27-1-1978 the 2nd respondent filed an appeal under S.18(2) of the Act That appeal was allowed by the 1st respondent as per order dated 31-5-1979 and the petitioners were directed to reinstate the 2nd respondent and to pay him all arrears of salary, allowances and backwages as per rules after deducting the subsistence allowance already paid to him or in the alternative to compensate him by payment of a lump sum amount equivalent to half a month's salary plus DA. for each of the month for all the 24 years of his service. The petitioners challenged the validity of that order in O.P. No 3313 of 1979 which was disposed of by a single Judge of this Court by the judgment dated 16-12-1980, a true copy of which is Ext. P-3, remanding the matter to the 1st respondent for deciding the question afresh after considering the evidence adduced by the parties before the 1st respondent. W.A. No. 147 of 1981 filed by the petitioners against Ext. P-3 judgment was dismissed by a Division Bench of this Court by the judgment dated 14-8-1981, a true copy of which is Ext. P-4. In Ext. P-3 judgment it was specifically stated that the Ist respondent "shall also dispose of the question regarding limitation with reference to the findings entered by that authority". On a consideration of the matter in the light of the directions given in Ext. P-3 judgment, the 1st respondent by the order dated 14-9-1981, a true copy of which is Ext. P-5, allowed the appeal and ordered the reinstatement of the 2nd respondent in service with the benefits of arrears of salary and past service and in the alternative payment of compensation to him.

(3.) Two grounds are seen to have been raised in this writ petition to challenge Ext. P-5 order passed by the 1st respondent: (1) the conclusion of the 1st respondent that the appeal filed by the 2nd respondent was within the time prescribed was wrong; and (2) the finding in Ext. P-5 that the misconduct alleged against the 2nd respondent was not true had no basis factually or legally. Sri. K. P. Radhakrishna Menon, the counsel for the petitioners, however, correctly, if I may say so, confined his arguments to the contention that the appeal was not filed in time, without touching upon the finding on the proof of misconduct. According to him, the 1st respondent was clearly in error in taking the view that the time for the purpose of S.18(2) of the Act was to be reckoned from 6-12-1976 on which date the decision of the Chief Regional Manager on the appeal filed by the 2nd respondent was communicated to him, and, that, in that view the appeal filed by him on 27-1-1978 was in time. On a reading of sub-section (2) of S.18 of the Act and sub-rule (1) of R.3 of the Rules what we find is that the right of appeal is conferred on the employee against the employer dispensing with his services and that such appeal "shall be preferred by the employee within sixty days from the date of delivery of the order terminating his services with the employer". Ext. P1 order dated 14-6-1976 concludes in these words: