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SCA/10117/2006 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10117 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 ?
=========================================================
NAGDANBHAI
HAMIRBHAI BORICHA - Petitioner(s)
Versus
THE
G.S.R.T.CORPORATION - Respondent(s)
=========================================================
Appearance
:
MR
GK RATHOD for
Petitioner(s) : 1,MR MUKESH H RATHOD for Petitioner(s) : 1,
MS
AVANI S MEHTA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 06/08/2008
ORAL JUDGMENT
In
present petition, the petitioner has challenged award dated 1.5.2004
passed by the labour court, Bhavnagr in reference (LCB) No.338 of
1999 whereby, the labour court has directed the corporation to
reinstate the workman. The labour court has, however, denied to grant
relief of back wages and relief of continuity of service. Actually,
by the impugned award, the labour court has specifically denied the
said two reliefs and has passed direction only for reinstatement.
Aggrieved
by the said award denying the said two reliefs present petitioner ?
workman has approached this court.
Mr.
Rathod appears for the petitioner and Ms. Mehta appears for the
respondent.
The
facts relevant for the purpose of present petition are that, the
petitioner was working as driver under the respondent corporation and
before his service came to be terminated, he had put in service of
about 10 years. It appears that the petitioner remained absent from
21.9.95 to 8.7.97 without prior intimation or without getting the
leave sanctioned and continued to remain absent until 8.7.1997. In
view of such continuous absence for such a long period, a charge
sheet was served on the petitioner ? workman and a departmental
inquiry was conducted. After conducting departmental inquiry and
after considering the findings of the inquiry officer, the
disciplinary authority passed order dated 24.2.98 dismissing the
petitioner from service of the respondent corporation. Against the
said order of the disciplinary authority, the petitioner preferred
departmental appeal which also came to be rejected by order dated
18.5.99.
Aggrieved
by the said order dated 18.5.99 of the first appellate authority, the
petitioner raised industrial dispute and approached labour court. The
dispute culminated into reference (LCB) No.338 of 1999 and after
considering the case of the appellant and the submissions of the
respondent, the labour court passed award dated 1.5.2004 whereby, the
labour court, though granted reinstatement, declined the relief of
back wages and continuity of service.
Mr.
Rathod submitted that the petitioner is actually aggrieved by the
denial of reliefs of back wages as well as continuity of service,
however, the petitioner will be satisfied, if, atleast, the relief of
continuity of service is granted. So as to support the petitioner’s
request for the relief of continuity of service, Mr. Rathod relied on
the judgment of the Hon’ble Apex Court in the case between Pepsu
Road Transport Corporation V/s. Rawel Singh reported
in [(2008) 4 SCC 42].
The
petitioner, in this petition, has not produced any material or
document except annexing the copy of the impugned award. The petition
came to be filed in December, 2005 and since then, the petitioner has
not considered it necessary to produce the record forming part of the
reference (LCB) No.338 of 1999. Therefore, this court is constrained
to decide the matter only on the basis of the observations recorded
in the impugned award.
From
perusal of the award, it transpires that before the labour court, the
petitioner had not challenged the legality of the inquiry. It is
pertinent that in view of the continuous absence from 21.9.95 to
8.7.97, the petitioner was served with charge sheet and departmental
inquiry was initiated, however, the workman did not appear before the
inquiry officer also and the inquiry had to be conducted ex-parte.
As
mentioned above, the petitioner has admitted the legality of the
inquiry and has also admitted the findings of the inquiry officer
before the labour court. Thus, the issues and findings of the learned
labour court regarding justifiability of the departmental inquiry
and/or corporation’s decision of conducting ex-parte inquiry and/or
findings of the inquiry officer are not required to be examined.
It
comes out from the award that the charge of continuous absence i.e.
from 21.1.95 to 8.7.97 without prior leave or sanction of the higher
authority was established before the inquiry officer and it has been
established before the labour acourt also and it has been accepted as
proved, by labour court.
It
is also noted by the labour court that during the period of absence,
the petitioner had not submitted any report and/or any medical
certificate. Thus, it follows that the petitioner not only failed to
but also did not care to give any satisfactory explanation as regards
his absence even after the charge sheet was served.
Even
during the departmental inquiry also, he was not present and the
absence continued beyond the period of charge sheet. In paragraph 7
of the impugned award, the labour court has recorded that, actually,
the petitioner remained absent from 21.1.95 to 15.12.97 i.e. for
almost 27 months. After having noticed that the petitioner workman
had failed to submit any report explaining absence and had also not
cared to produce any medical evidence while he was absent and
continued his absence even after the charge sheet. The labour court
was required to examine the order of penalty passed by the competent
authority in light of the aforesaid facts and circumstances. Upon
considering the aforesaid aspects the labour court considered it
appropriate to not grant the relief of back wages and to also deny
the relief of continuity of service, though the court directed the
respondent corporation to reinstate the petitioner on the ground that
the penalty of termination from service was, in view of the court,
harsh and disproportionate.
In
the facts and circumstances of the present case, it is difficult to
hold that the labour court has committed any error which would
justify interference by this court in exercise of the powers under
Articles 226 and 227 of the Constitution of India. This court would
interfere with the exercise of discretionary power under section 11-A
by labour court when the power is exercised arbitrarily or without
having regard to facts of the case or without total non-application
of mind to the settled legal position or if the labour court has
exercised the power irrationally. However, in present case, impugned
award does not suffer from any such defect and Mr. Rathod has not
been able to point out any finding or direction in the award which
would call this court to step-in and disturb any finding or
direction.
Mr.
Rathod has relied on the judgment of the Hon’ble Apex Court to
support the petitioner’s prayer for continuity of service and not for
assailing the award. Mr. Rathod appears to be conscious of the fact
that in light of the facts of present case, the judgment of the
Hon’ble Apex Court would not help him to assail the award. In the
case before the Hon’ble Apex Court the direction of continuity of
service was granted by the labour court and was confirmed by the
High Court and the Hon’ble Apex Court at that stage did not consider
it necessary to set aside the said direction as the absence from
duty was only for few days whereas in present case the labour court
has, in its direction and after examining the facts of the case and
gravity of proved misconduct, declined to grant
the relief of continuity of service and since in present case
the undisputed period of
absence from duty by a driver of state transport corporation is of 27
months no fault can be found with the decision of the court in
considering the said default as serious misconduct and consequent
exercise of the discretion of labour court to not grant relief of
back wages and/or continuity of service to a person who is found to
be so irregular, irresponsible and indisciplined. In the case before
the Hon’ble Apex Court, the direction regarding continuity was
granted, and thus, the Hon’ble Court did not disturb said
direction whereas in present case the labour court has not
considered it appropriate to grant the relief of continuity. On
the contrary the labour court has expressly denied the said
relief. In the facts of the case the said denial cannot be termed
arbitrary and thus, the Hon’ble Apex Court’s judgment would not help
the petitioner in view of the material and substantial difference in
facts of present case.
In
view of this court the exercise of discretion by the learned labour
court to deny the relief of back wages and continuity of service is
neither arbitrary nor irrational nor it is in disregard to the
recognized and well settled legal premise for exercising discretion.
Hence, there is cause or justification to interfere with or disturb
the discretion exercised by the labour court and its decision to deny
the relief of back wages and continuity of service.
At
this stage, it is necessary to address one identical issue. It is
regarding gratuity. It transpires from the award that prior to his
termination, the petitioner had put in service of 10 years. It is
clear that his service was terminated on account of absentism and no
notice about any loss to the corporation or for forfeiture of
gratuity appears to have been issued by the corporation until now.
The petitioner’s service was not terminated for any riotous or
disorderly conduct or for any act of violence or for an offence
involving moral turpitude and that therefore, in view of this court,
it would not be just or equitable to wipe out 10 years of his service
so far as gratuity is concerned. Hence, it is clarified that though
the relief of continuity is not granted, the petitioner shall be
entitled for gratuity for the said 10 years.
In
the result, on overall consideration of facts and circumstances of
this case, present petition is not accepted so far as the rejection
or denial of relief for continuity of service and back wages is
concerned. Actually the petitioner gave-up, during the hearing of
petition, the claim for back wages. In any case the said claim is not
accepted by this court also and the petition is, thus, disallowed and
disposed of with the aforesaid clarification. Notice discharged. No
order as to costs.
[K.M.Thaker,
J.]
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