Gujarat High Court Case Information System
Print
SCA/8760/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8760 of 2010
With
SPECIAL
CIVIL APPLICATION No. 10772 of 2010
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 ?
=========================================
DIVISIONAL
CONTROLLER - Petitioner(s)
Versus
BALWANTSINGH
CHATURSINGH SOLANKI ( C/O NORDOSH H RATHOD)-Respondent(s)
=========================================
Appearance
:
MS KIRAN D
PANDEY for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1,
MR
MUKESH H RATHOD for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 22/09/2010
COMMON
ORAL JUDGMENT
1. Rule.
Shri Mukesh H. Rathod, learned
advocate waives service of notice of Rule on behalf of the respondent
in Special Civil Application No.8760/2010.
As
both these petitions arise out of one impugned judgment and award
passed by the Labour Court, Himatnagar in Reference (LCH) No.60/2004
and as such both the petitions can be said to be cross petitions,
they are being disposed of by this common judgment and order.
2. Special
Civil Application No.8760/2010 has been preferred by the petitioner
Gujarat State Road Transport Corporation challenging the impugned
judgment and award dated 25.11.2009 passed by the Labour Court,
Himmatnagar in Reference (LCH) No.60/2004, by which the Labour Court
has partly allowed the said reference directing the petitioner to pay
all benefits available to the respondent inclusive of retiral
benefits with 40% back wages from the date of termination i.e.
01.10.2002 to 31.10.2005.
Special
Civil Application No.10772/2010 has been preferred by the workman
conductor challenging the aforesaid judgment and award passed by the
Labour Court, Himmatnagar in Reference (LCH) No.60/2004 insofar as
there is no specific order passed by the Labour Court in quashing and
setting aside the order of termination and passing the order of
reinstatement atleast till the workman attain the age of
superannuation i.e. 31.10.2005.
3. Having
heard the learned advocates appearing on behalf of respective
parties, it appears that in a departmental inquiry, charge of
remaining unauthorizedly absent for 20 days came to be proved. It
is an admitted position that the workman did not participated in the
inquiry. That on conclusion of the departmental inquiry and having
found that the charge of remaining unauthorizedly absent for 20 days
came to be proved and considering his earlier 11
misconducts/defaults, petitioner Gujarat State Road Transport
Corporation passed an order of dismissal, which came to be challenged
by the workman, which was referred to the Labour Court, Himmatnagar
and which was numbered as Reference (LCH) No.60/2004.
4. Ms.
Kiran Pandey, learned advocate appearing on behalf of the petitioner
Corporation has submitted that in the facts and circumstances of the
case, when the charge and misconduct of remaining unauthorizedly
absent came to be proved and considering the fact that there were 11
defaults committed by the workman in past, the learned Labour Court
has materially erred in quashing and setting aside the order of
dismissal and directing the petitioner to pay all consequential
benefits available to the respondent with 40% back wages from the
date of dismissal till the respondent attain the age of
superannuation i.e. 31.10.2005. It is further submitted that in such
a case and situation, the Labour Court has materially erred in
exercising powers under Section 11A of the Industrial Disputes Act.
On
the other hand, Shri Mukesh Rathod, learned advocate appearing on
behalf of the respondent workman has submitted that considering
29 years of service as a conductor and the charge proved against the
workman with respect to remaining unauthorizedly absent for 20 days,
when the Labour Court found that order of punishment and dismissal is
disproportionate to the charge and misconduct proved and when the
Labour Court interfered with the same and exercised discretion under
Section 11A of the Industrial Disputes Act, the same is not required
to be interfered by this Court while exercising powers under Article
227 of the Constitution of India. Shri Mukesh Rathod, learned
advocate appearing on behalf of the workman has submitted, under the
instruction of his client, that he has no objection if the impugned
judgment and award passed by the Labour Court awarding 40% back wages
from the date of termination till 31.10.2005 i.e. the date on which
the respondent attain the age of superannuation, is quashed and set
aside and petitioner is directed to pay the retiral benefits to the
workman. It is submitted by him that as such, as so observed by the
Labour Court in the impugned judgment and award, respondent has
already been paid retiral
benefits like provident fund, gratuity. Therefore, it is requested
to consider the aforesaid.
5. Having
heard learned advocates appearing on behalf of respective parties and
considering the facts and circumstances, it appears that the charge
of remaining unauthorizedly absent for 20 days came to be established
and proved in a departmental inquiry. The aforesaid is required to
be considered alongwith other 11 defaults committed by the respondent
workman in the past. Under the circumstances, the Labour Court has
committed an error in awarding 40% back wages from the date of
dismissal till the respondent workman attain the age of
superannuation. In the aforesaid facts and circumstances and
considering the 11 defaults committed by the respondent, it is very
debatable issue whether the Labour Court was justified in quashing
and setting aside the order of dismissal passed under Section 11A of
the Industrial Disputes Act. However, considering the fact that the
respondent had 29 years of service and had already retired in the
meantime and had attained the age of superannuation on 31.10.2005 and
that he has already been paid benefits like provident fund, gratuity,
it will be just and proper to confirm that part of the order by which
the Labour Court has directed the petitioner to pay all retiral
benefits to the respondent, which are as such already paid. However,
the Labour Court is not justified in awarding 40% back wages from the
date of dismissal till the respondent attain the age of
superannuation i.e. 31.10.2005. Even Shri Rathod, learned advocate
appearing on behalf of the respondent, under the instruction of his
client, has agreed that if the respondent is paid the retiral
benefits considering his 29 years of service and the impugned
judgment and award passed by the Labour Court awarding 40% back wages
from the date of dismissal i.e. 31.10.2005, is hereby quashed and set
aside, he has no objection and therefore, the impugned
judgment and award deserves to be quashed and set aside.
6. In
view of the above, Special Civil Application No.8760/2010 is partly
allowed and in peculiar facts and circumstances and more particularly
when the respondent has already attained the age of superannuation
i.e. 31.10.2005 and he has already been paid retiral benefits like
provident fund and gratuity, the impugned judgment and award passed
by the Labour Court, Himmatnagar dated 25.11.2009 in Reference (LCH)
No.60/2004, is hereby quashed and set aside to the extent by which
the Labour Court has directed the petitioner to pay 40% back wages
and other benefits from the date of dismissal till 31.10.2005 and it
is held that the respondent shall be entitled to only retiral
benefits like provident fund and gratuity. Rule is made absolute to
the aforesaid extent so far as Special Civil Application No.8760/2010
is concerned and in view of the above, no further order is required
to be passed in Special Civil Application No.10772/2010 and is,
accordingly, disposed of.
(M.R.
Shah, J.)
*menon
Top