SCA/439320/2008 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4393 of 2008 ================================================= MUNICIPAL COMMISSIONER & 1 - Petitioners Versus RAMESHBHAI SAKHARAM MAHADIK - Respondent ================================================= Appearance : MR NILESH A PANDYA for Petitioners : 1 - 2. MR JS BRAHMBHATT for Respondent : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 17/10/2008 ORAL ORDER
Heard
learned counsels for the parties.
The
petitioner – Municipal Commissioner of Vadodara Municipal
Corporation has assailed the order passed by the Presiding Officer,
Labour Court, Vadodara dated 21/9/2007 in Reference (LCV) No. 724 of
2001 ordering 50% back wages to the employee from 8/7/1996 till he
attained the age of superannuation i.e. 31/8/2005 with continuity of
service and all the consequential benefits admissible to him. The
reinstatement was not granted in view of the fact that the workman
attained age of superannuation in the meanwhile and during pendency
of the reference. It was the case of the workman before the Labour
court that he was serving in the Corporation as permanent employee
since last 28 years and he came to be arrested in respect of a
complaint filed by one person being FIR No. I-123/1996 on 5/9/1996.
Sessions Case was registered and in the trial ultimately he was
acquitted. The workman came to be charge sheeted on 21/5/1997 for
absenteeism for the period from 1/6/1996 to 5/6/1996, and the
deparmental inquiry was conducted. The workman cooperated in the
inquiry. The inquiry officer found him not guilty and completely
exonerated him from the charge levelled against him. The report
was submitted on 26/11/1998. The employee came to be served with
show cause notice for punishment of degrading him one step down. The
workman replied to the show cause notice on 6/10/2000 and ultimately
though the notice for degrading was issued, order of dismissal came
to be passed on 20/1/2001.The dismissal order was ex facie bad and
untenable and therefore Industrial Dispute was raised which came to
be referred to the authority for adjudication,which came to be
numbered as Reference No. (LCB) 724/2001. The Labour Court has
held that the order of dismissal was completely illegal and
therefore granted 50% back wages with continuity of service and as
the workman had attained age of superannuation in the meanwhile did
not grant reinstatement.
Shri
Pandya, learned counsel for the petitioner could attempt to assail
the award on the count that the employee was involved in an offence
which amounts to moral turpitude but he could not stretch this
matter any further. Against this it deserves to be noted that the
order of the show cause notice was issued after the findings
recorded by the inquiry authority with regard to exonerating the
workman.
Shri
Brahmbhatt, learned counsel for the respondent workman vehemently
contended that the show cause notice itself was bereft of any
merits as it did not contain any reason for disagreeing with the
inquiry officer’s report. Moreover the show cause notice was issued
for degrading the workman whereas order of dismissal came to be
passed in colourable exercise of power by the Commissioner and
therefore the order impugned before the Labour Court was rightly
quashed and set aside.
This
Court has heard learned counsels for the parties. The fact remains
to be noted that the inquiry officer once records exoneration then,
if the disciplinary authority is disagreeing with the findings
thereof, will have to issue notice recording his reasons for his
disagreement which has to be communicated to the concerned employee.
In this case admittedly same procedure has not been followed. This
Court relying upon the decision of the Apex Court held in case of DL
SHARMA Vs. D.S. SHUKLA, And Or His Successor in Office & Anr,
reported in 2008 (1) G.L.H. 310, that such an exercise is absolutely
essential on the part of the disciplinary authority. In view of
this, the award impugned in this petition does not deserve to be
interfered with. The petition, therefore, requires to be dismissed
and is accordingly dismissed. Notice discharged. However, there
shall be no order as to costs.
[
S.R. BRAHMBHATT, J ]
/vgn