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SCA/16755/2010 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16755 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=========================================================
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 ?
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DIVISIONAL
CONTROLLER - Petitioner(s)
Versus
HASMUKHBHAI
SHANKARBHAI SOLANKI - Respondent(s)
=========================================================
Appearance :
MR
HARDIK C RAWAL for
Petitioner(s) : 1,
MR NK MAJMUDAR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 03/08/2011
ORAL
JUDGMENT
1. Learned
Advocate, Mr.Hardik C Rawal, for the petitioner moves draft
amendment. The same is granted.
2. The
Divisional Controller, Godhra (GSRTC) is before this Court being
aggrieved by an award and order dated 10/05/2010 passed by the
learned Presiding Officer, Labour Court, Godhra in Reference (LCG)
No.179 of 2004.
3. Learned
Advocate for the petitioner strenuously contended that the learned
Judge of the Labour court has erred in ordering payment of 75% of the
back wages (from the date of termination till the date of
superannuation i.e. from 24/07/2000 to 30/11/2006) with consequential
benefits and also the post retiral benefits by calculating his
service from the date of dismissal till the date of superannuation
(30/11/2006). The learned Judge was further pleased to award an
amount of Rs.1001/- towards the expenses to the workman.
4. Learned
Advocate for the petitioner invited attention of the Court to the
documents produced before the Court below being Exh.35 wherein as
many as 16 prior defaults (other than the the present one) are
recorded, of that 08 are pertaining to unauthorized absence. Learned
Advocate for the petitioner invited attention of the Court to those
defaults of unauthorized absence by making available said information
in tabular form.
Sr.
No.
Sr.No.
In Exh.35 document
Date
on which the respondent-workman unauthorized absence.
Number
of days for which respondent – workman remained unauthorized
absence.
01
03
10/01/1975
to 13/01/1875
04
days
02
04
07/12/1974
to 06/01/1974
31
days
03
05
08/06/1975
to 12/06/1975
05
days
04
06
16/04/975
to 21/04/975
06
days
05
10
09/05/1977
to 28/05/1977
20
days
06
11
09/12/1977
to 21/12/1977
13
days
07
12
04/07/1977
to 09/07/1977
06
days
08
16
03/01/1984
to 05/01/984
03
days
09
17
02/12/1999
to 24/07/2000
236
days
5. In
the present instance the workman remained absent from 02/12/1999 to
24/07/2000. The date on which he was dismissed from his service on
account of unauthorized absence for the period to 236 days.
6. Learned
Advocate for the petitioner submitted that the matter requires
consideration, inasmuch as, the award of 75% of back wages and
consequential benefits will come to Rs.7,49,873/-.
7. RULE.
Learned Advocate, Mr.Majmudar, for the respondent – workman
waives service of notice of Rule.
On a request made by learned Advocate for the petitioner the matter
is taken up for final hearing to which learned Advocate for the
respondent has no objection.
8. It is
really painful that the persons in-charge of the affairs do not
discharge their duty as required under the law, otherwise present
case would not have arisen, if the authorities had taken action
against the respondent – workman right in the year 1974 when he
had remained unauthorizedly absent for 31 days. As it is mentioned in
Exh.35 as to what punishment was awarded in those earlier instances,
the same is not reproduced here. But the perusal of the same reveals
as to how lightly the persons in-charge of the employees have treated
‘unauthorized absence’ of the respondent – workman. In one case
when he was absent from 08/06/1975 to 12/06/1975, the only penalty
imposed is fine of Rs.5/-. In other cases his increment was withheld
for a period of six months, three months or a like. Sometime ‘with
future effect’ and many a times ‘without future effect’. This is the
seriousness with which the authority has been treating the instances
of unauthorized absence which was required to be considered to be a
grave misconduct on the part of the employee, because he is serving
in an organization like GSRTC which is providing ‘service to the
public’ at large.
9. In
the present case, the learned Judge has held that out of the period
mentioned to be of unauthorized absence i.e. from 02/12/1999 to
24/07/2000 only period from 02/12/1999 to 12/12/1999 can be held to
be of unauthorized absence. The learned Judge has believed that
thereafter the respondent – workman had sent an application
alongwith medical certificate. Learned Advocate for the
respondent-workman did make available for perusal application date
12/12/1999 alongwith medical certificate but the learned Advocate is
not able to read the contents thereof because of illegible
handwriting. Learned Advocate for the respondent submitted that the
respondent who is present in the Court is suffering from tuberculosis
of intestine. He fairly submitted that this is only on oral
instructions given by the respondent – workman who is present
in the Court but he does not have any certificate from medical expert
in support of this submission.
10. Taking
into consideration the past history of unauthorized absence, more
particularly, taking into consideration earlier 10 instances of
unauthorized absence, this Court is of the opinion that the
substitution of punishment of dismissal by non-payment of 25 % back
wages is no punishment for a grave misconduct of an employee of
public organization. Even if the learned Judge had come to the
conclusion that for the rest of the period i.e. 12/12/1999 to
24/07/2000 as the respondent – workman had sent an intimation
to the authority, he cannot be held to be unauthorizedly absent. The
learned Judge has ignored an important aspect of the matter that is
the respondent – workman for the reasons best known to him did
not co-operate the department – authority in the departmental
proceedings held against him.
10.1 Learned
Advocate for the respondent though inquired repeatedly with the
respondent – workman, he is not able to give any convincing
reason for not remaining present in the departmental proceedings and
not co-operating to the authorities in the departmental proceedings.
The respondent – workman instructed learned Advocate to state
before this Court that on one date of departmental proceedings, he
did not remain present in the departmental proceedings because his
niece had died. This instruction given by the respondent, who is
present in the Court, is not of much significance for the reason that
the departmental proceedings did not get over in one single hearing
as it is mentioned by the learned Judge in paragraph No.3 of the
award and order that charge-sheet No.52 of 2000 dated 04/02/2000 was
served to the respondent – workman as well as Notice dated
05/04/2000 and 24/04/2000 were served for personal hearing. It is
also recorded by the learned Judge that on 10/04/2000 respondent –
workman had asked for an adjournment but thereafter he
did not remain present and therefore the
departmental proceedings
were required to be concluded in his absence. It is also recorded by
the learned Judge of the Labour Court that the respondent –
workman was served with a Notice dated 26/04/2000 to remain present
on 05/05/2000 but he did not remain present. The respondent –
workman was served with the second show-cause notice which was
replied by the respondent – workman on 26/06/2000 alongwith the
medical certificate. From the aforesaid facts, it is clear that the
respondent – workman had remained absent without prior
permission of the higher authority. The learned Judge recorded that
the respondent – workman did not honour Notice dated
18/01/2000. Thus the conduct of the respondent is clearly depicted
by the learned Judge.
11. Taking
into consideration the fact that the learned Judge has overlooked the
prior instances of unauthorized absence while passing the order of
payment of 75 % back wages, it warrants interference and modification
of the award and order at the hands of this Court.
12. While
deciding about the quantum of back wages to be awarded to the
respondent – workman the learned Judge of the Labour Court has
mentioned in paragraph No.10(D) that as the period of unauthorized
absence is only from 02/12/1999 to 21/12/1999, the punishment of
dismissal is excessive and therefore the order of reinstatement is
required to be passed on
the original post but as the respondent – workman has already
reached the age of superannuation on 30/11/2006, the order of
reinstatement is not passed.
12.1 It
is thereafter the learned Judge of the Labour Court has considered
the other factors for passing an order of awarding 75 % back wages.
It is recorded by the learned Judge of the Labour Court that it is
stated by respondent in his cross-examination that though he was
going to find out the work, he did not get the same; there are three
sons and one daughter in his family; that his wife is housewife and
was earning and therefore they were able to meet with the household
expenses. He was not earning anything to meet household expenses. The
learned Judge has then recorded that first party i.e. employer has
not produced any evidence to show that after the termination of
service of the respondent – workman, he had earned any income
and taking into consideration the report submitted by the workman on
12/12/1999 about his absence, the learned Judge has awarded 75 % back
wages.
13. Learned
Advocate for the petitioner invited attention of the Court to the
following decisions of the Hon’ble Apex Court wherein the Hon’ble
Apex Court has considered various aspects like ‘the facts of the
case’, ‘place of employer’, ‘tenure of employment’ and other relevant
circumstances.
Devinder
Singh Vs. Municipal Council Sanaur reported in (2011) 6 SCC 584.
Rajasthan
Lalit Kala Academy Vs. Radhey Shyam, reported in AIR 2009 SC (Supp)
919.
Jagbir
Singh Vs. Haryana State Agricultural Marketing Board & Anr.,
reported in AIR 2009 SC 3004.
Faridan
Vs. State of Uttar Pradesh, reported (2010) 1 SCC 497.
Ashok Kumar Sharma Vs.
Oberoi Flight Service, reported in (2010) 1 SCC 142.
13.1 Learned
Advocate for the petitioners while making his submissions has relied
upon the paragraph Nos.16 and 17 of the decision rendered in case of
Devinder Singh (Supra) which
reads as under:
“16. In Silver Jubilee
Tailoring House v. Chief Inspector of Shops and Establishments 1974
(3) SCC 498 the three Judge Bench held that the tailors employed in a
tailoring shop, who were paid according to their skill and work and
the quality of whose work was regularly checked were employees
covered by the Andhra Pradesh (Tilengana Area) Shops and
Establishments Act, 1951. In L. Robert D’souza v. Executive
Engineer (1982) 1 SCC 645 the Court held that even a daily rated
worker would be entitled to protection of Section 25-F of the Act if
he had continuously worked for a period of one year or more.
17. Section 25 couched in
negative form. It imposes a restriction on the employer’s right
to retrench a workman and lays down that no workman employed in any
industry who has been in continuous service for not less then one
year under an employer shall be retrenched until he has been given
one month’s notice in writing indicating the reasons for
retrenchment and the period of notice has expired or he has been paid
wages for the period of notice and he has also been paid, at the time
of retrenchment, compensation equivalent to fifteen days’
average pay for every completed year of continuous service or any
part thereof in excess of six months and notice in the prescribed
manner has been served upon the appropriate Government or the
authority as may be specified by the appropriate Government by
notification in the Official Gazette.”
(emphasis
supplied)
13.2 Learned
Advocate for the petitioner while making his submission has relied
upon paragraph No.19 of the decision rendered in Rajasthan Lalit
Kala Academy (Supra) which
reads as under:
“19. It
appears to us that in the present case there has not been due
application of mind either by the Labour Court or the High Court on
the question of reinstatement and payment of 25% back-wages. The only
ground on which reinstatement and continuity of service has been
ordered is because the order of termination has been held to be
unlawful. Similarly, 25% back-wages have been awarded for the reason
that the services of the petitioner were terminated with immediate
effect but no specific reason as such has been assigned for the award
of the said backwages. In our opinion, though, illegality of the
order of termination is one of the prime considerations for
determining the question and quantum of back-wages, but it cannot be
the sole criterion therefor. A host of other factors, a few
enumerated above, are required to be taken into consideration before
issuing directions in that behalf. Therefore, the award of the Labour
Court to that extent cannot be sustained. However, we feel that at
this distant time, it would not be fair to the respondent-workman to
remit the matter back to the Labour Court or the High Court for fresh
consideration of the issue.
In the light of the observations referred to supra and having regard
to the nature and the period of services rendered by the respondent
and the fact that his services were terminated initially on 4th
April, 1981 and then on 31st January, 1985 and the vicissitudes of
long-drawn litigation, the respondent has undergone for over 27
years, interest of justice would be met if instead and in place of
direction for reinstatement and back-wages–a sum Rs.3 lakhs is
directed to be paid to the respondent by
way of compensation. We direct accordingly. The payment shall be made
within eight weeks from today, failing which it shall carry interest
@ 9% per annum
from the date of
this judgment till the date of actual payment. We may note that in
the affidavit, filed in response to the query raised by the Court on
29th April, 2008, it is stated that if the present appeal is
dismissed, the appellant would be liable to pay to the respondent
more than Rs.8 lakhs. It goes without saying that the said amount of
compensation is over and above the amount, the respondent is entitled
to receive in terms of award dated 24th September, 1983, which has
attained finality.”
(emphasis
supplied)
14. In
light of the aforesaid decisions of the Hon’ble the Apex Court this
Court is of the opinion that it will be in the fitness of things if
instead of 75 % back wages, a lump sum amount of compensation is
awarded to respondent – workman and the award made by the
learned Judge of the Labour Court is modified to that effect only.
15. Learned
Advocate for the petitioner submitted that the respondent –
workman is entitled for Provident Fund (his own contribution and
equal contribution from the employer), Gratuity and encashment of
unavailed leave. Besides this, the respondent – workman is not
entitled to any other benefits, as there is no scheme for that in the
petitioner – Corporation.
16. Taking
into consideration the aforesaid facts, this Court is of the opinion
that amount of Rs.1 Lac (Rupees One Lac) be awarded by way of lump
sum compensation in lieu of reinstatement as the respondent-workman
has already reached the age of superannuation and that will meet the
ends of justice. It is clarified at the request of the learned
Advocate for respondent – workman that the amount of Rs.1 Lac
be paid in addition to the amount payable to respondent by way of PF
and Gratuity and that while making calculation of gratuity amount the
date of retirement of the respondent – workman should be
treated as of 30/11/2006 (the date on which he reached for
superannuation).
17. Learned
Advocate for the petitioner, Mr.Raval, showing grace stated that this
entire amount will be paid to the respondent – workman at the
earliest but not later than 05/09/2011. It goes without saying that
the amount of PF and gratuity will bear the statutory rate of
interest i.e. 9 % on and the amount which is unpaid. Rule is made
absolute to the aforesaid extent only.
(RAVI
R TRIPATHI, J.)
sompura
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