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SCA/5172/2002 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5172 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
SURAT
MUNICIPAL CORPORATION - Petitioner(s)
Versus
JASHUBEN
KARSANBHAI PANDYA - Respondent(s)
=========================================
Appearance :
MR
PRASHANT G DESAI for
Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 21/10/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India
the petitioner-Corporation has prayed for an appropriate writ, order
or direction quashing and setting aside the impugned judgement and
award dated 02/03/2001 passed by the learned Presiding Officer,
Labour Court No. 3, Surat in Reference Application No. 148/1993 by
which the Labour Court has directed the petitioner to reinstate the
respondent without back wages but without continuity of service.
2. Though
served, nobody appears on behalf of the respondent.
3. Having
heard Shri P.G. Desai, learned Senior advocate assisted by Shri G.M.
Joshi, learned advocate appearing on behalf of the petitioner and
considering the impugned judgement and award and the facts so stated
in the petition it appears that the petitioner received an
application for badli worker on 08/07/1985 in the name of Smt.
Jashuben Karsanbhai Padaya and, thereafter, the said applicant was
called for interview and was appointed on the said post. Thereafter,
vide letter dated 19/09/1991 she was appointed as safai kamdar from
19/09/1991. It appears that thereafter the original Jashuben
Karsanbhai Padaya lodged complaint before the police alleging that
the respondent joined the service in the Corporation by using her
name and has fraudulently got the appointment and she has cheated the
Corporation.
4. It
is the case on behalf of the petitioner that having come to the
knowledge of the Corporation the above fact, the Corporation called
the respondent for personal hearing on 20/02/1993 for ascertaining
the true facts of the allegations and whether the respondent was the
same Jashuben Karsanbhai Padaya, who had applied for the post and she
was also asked to produce necessary documents. It appears that the
respondent confessed that she is not the one who had applied with the
Corporation as Jashuben Karsanbhai Padaya and, therefore, from
22/02/1993 she herself discontinued to work with the Corporation.
Thereafter, the respondent raised an industrial dispute before the
Labour Court Commissioner, which was referred the Labour Court,
Surat, which was numbered Reference Application No. 148/1993 mainly
on the ground that before terminating the service of the respondent
no departmental inquiry has been initiated and no criminal complaint
has been filed. The Labour Court passed an order to reinstate the
respondent, however denied the back wages.
5. Considering
the aforesaid judgement and order and the facts narrated
hereinabove, it appears that there was no termination by the
petitioner at all and on the contrary having faced with the situation
and the allegation and having being caught the respondent herself
stopped attending the duties and, therefore, there is no termination
at all for which any procedure was required to be followed as
required under the provisions of the Industrial Disputes Act. Under
the circumstances and in the facts and circumstances of the case, the
Labour Court has materially erred in partly allowing the Reference
directing the petitioner to reinstate the respondent to her original
post i.e. as safai kamdar.
6. In
view of the above, the present petition succeeds. The impugned order
dated 02/03/2001 passed by the learned Presiding Officer, Labour
Court No. 3, Surat in Reference Application No. 148/1993 is hereby
quashed and set aside. Rule is made absolute. No cost.
(M.R.
SHAH, J.)
siji
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