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SCA/7077/2011 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7077 of 2011
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 ?
=========================================================
DIVISIONAL
CONTROLLER - Petitioner(s)
Versus
NAZIR
A MALIK & 1 - Respondent(s)
=========================================================
Appearance
:
MS
ARCHANA PATEL for MR HARDIK C RAWAL
for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1 - 2.
MS
MOHINI J BHAVSAR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 26/09/2011
ORAL
JUDGMENT
Heard
learned Advocate Ms.Archana Patel for learned Advocate Mr.Hardik
C.Raval for the petitioner and learned Advocate Ms.Mohini J.Bhavsar
for respondent No.1-workman.
Learned
Advocate for the petitioner requests that if the matter could be
taken up for final disposal.
Learned
Advocate for the respondent-workman has no objection.
2. Learned
Advocate for the petitioner submitted that there were as many as 74
defaults to the credit of the respondent-workman and therefore, award
and order dated 03.09.2010 passed by the learned Judge, Labour Court
No.1, Bhavnagar, in Reference (LCB) No.442 of 1999 is unwarranted and
cannot be allowed to stand. Learned Advocate for the petitioner
submitted that the learned Judge has committed an error in ordering
20% back wages till the date of superannuation, which is 28.02.2006
with all consequential benefits, which has aggravated the adverse
effect.
2.1 Learned
Advocate for the petitioner submitted that out of 74 defaults, for
one of the defults, the respondent-workman was awarded punishment of
dismissal, but later on, the same was varied and he was continued in
service. Learned Advocate for the petitioner submitted that the
respondent-workman was punished by stoppage of increments, which some
were with future effect and others were without future effect.
2.3 Learned
Advocate for the petitioner submitted that in light of that, to award
20% back wages till the date of superannuation is too harsh an order,
causing loss to the public exchequer. Learned Advocate for the
petitioner submitted that the defaults are of ‘financial
irregularities’ as the respondent-workman was serving as ‘Conductor’.
3. Having
heard the learned Advocate for the parties, this Court is of the
opinion that it will be in fitness of things if the award and order
dated 03.09.2010 is modified to the effect that the
respondent-workman be allowed to retire from service on 17.01.1996,
that will be without any stigma and the respondent-workman will be
entitled to receive whatever benefits he is entitled to on his
walking out of the service on 17.01.1996. This will be as a part of
exercise of balancing the interest of both the parties.
4. In
the result, the petition is partly allowed. Award and order dated
03.09.2010 is modified. The petitioner-GSRTC is directed to allow the
respondent-workman to retire with effect from 17.01.1996. Rule is
made absolute to the aforesaid extent. No costs.
At
the request of learned Advocate Ms.Mohini J.Bahvsar for the
respondent-workman, the petitioner is directed to pay post-retiral
dues to the respondent-workman at the earliest, but not later than
eight (8) weeks from the date of receipt of copy of this judgment and
order.
(Ravi
R.Tripathi, J.)
*Shitole
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