IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 163 of 2003
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
DEVJIBHAI GORDHANBHAI LIMBANI
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Appearance:
1. Special Civil Application No. 163 of 2003
MR ASHISH M DAGLI for Petitioner No. 1
.......... for Respondent No. 1
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CORAM : MR.JUSTICE H.K.RATHOD
Date of Order: 03/05/2003
ORAL ORDER
Heard learned advocate Mr. Ashish M.Dagli for
the petitioner. In this petition, the petitioner has
challenged the order passed by the conciliation officer
under section 33(2)(B) of the Act dated 29th June, 2002
wherein the approval application filed by the petitioner
corporation has been rejected. It was submitted by the
learned advocate Mr. Dagli that some advocate has filed
caveat in this matter. However, he is unable to give name
of the advocate who has filed caveat in this matter. He,
however, submits that if the notice is issued, then,
something can be found in this matter. However,
ultimately has argued the matter.
In this case, initially, punishment was imposed
upon the workman wherein his pay scale was lowered down
by five stage in the pay scale of conductor. Thereafter,
appeal was filed wherein the review show cause notice was
issued. Reply thereto was given by the respondent
workman and on the basis of the findings of the inquiry,
order of dismissal was passed on25.7.2001 and the notice
pay was also paid but the appeal remained as it is and
the order which was challenged in the appeal remained as
it is and it has not been cancelled or recalled before
dismissing the workman and he petitioner has failed to
pay the monthly wages to the respondent by adding the
salary of the workman by five stages which were lowered
down as per the earlier order of punishment. This aspect
has not been disputed by the learned advocate Mr. Dagli
before this Court. He has, however, pointed out that the
respondent has committed 46 misconducts in past and the
one was serious wherein he recovered fares of Rs.110.00
and not issued the ticket to the passenger and,
therefore, he submitted that the approval authority ought
to have granted approval and has committed an error in
rejecting the approval application.
I have perused the order passed by the approval
authority and I have also considered the submissions made
by the learned advocate Mr. Dagli for the petitioner.
It is necessary to be noted that the approval application
was filed by the petitioner on 26th July, 2001 before the
conciliation officer in pending case no.7 of 197 and 12
of 1997 and the charge sheet was issued to the respondent
on 16th June, 1997 and reply thereto was submitted by the
workman on 19th October, 1997 and the departmental
inquiry was held between 27th July, 1997 to 17th July,
2000and thereafter, show cause notice was given to the
respondent on 29th Sept. 2000 and the reply was
submitted by the workman on 1st October, 2000and
ultimately, the competent authority passed order dated
30th October, 2000 wherein he lowered down the existing
salary of the workman by five stages and thereafter,
while the said punishment was in force, the case was
reviewed by the reviewing authority by issuing show cause
notice to the workman and ultimately, he was ordered to
be dismissed on 25th July, 2001 and thereafter, approval
application was filed wherein also reply was submitted by
the workman on 24th January, 2002. The approval
authority has discussed the matter in detail and
considered the misconduct in question and certain
questions were raised by the workman as narrated by the
approval authority at page 15 and the main issue raised
is to the effect that the monthly wage which was paid to
the respondent after the punishment order dated 30th
October, 2000 cannot be considered to be monthly wages
which is otherwise available to the respondent workman.
This aspect has been examined by the approval authority
and the approval authority has come to the conclusion
that at the time of issuing review show cause notice, the
reviewing authority ought to have recalled or set aside
the earlier punishment and after setting aside the
earlier punishment, matter could be reviewed and orders
as regards punishment could be passed.The approval
authority has observed that in the confidential circular
no. 1310 dated 18.1.1991 of the competent authority of
the petitioner establishment, specific instructions have
been issued that while reviewing the cases, when decision
is taken for dismissing the workman, it should be issued
be implemented only after recalling or cancelling the
earlier punishment i.e. two punishments cannot be
executed simultaneously and in view of that, it can be
said that the notice pay has also not been paid to the
workman as per the rules. In view of all these aspects,
approval application has been rejected by the approval
authority which is under challenge in this petition. I
am of the opinion that there are mandatory requirements
under section 33(2)(B) of the ID Act, one of which is
that the workman is entitled to monthly salary which was
paid to him lastly and if it is considered, then, the
last salary of the workman must have to be considered and
after setting aside the earlier order of punishment
lowering down the salary by five stages, his salary is
required to be revised by cancelling earlier punishment
and, therefore, since that has not been done in this
case, it cannot be said that the workman has been paid
his actual last months’ salary while dismissing him from
service and, therefore, it cannot be said that the
condition precedent under section 33(2)(B) has been
satisfied and, therefore, I am of the opinion that the
competent authority has rightly rejected the application
for approval.
I am, therefore, of the opinion that the order in
question does not require any interference in this
petition under Article 226/227 of the Constitution of
India and the same is required to be rejected.
In the result, this petition is rejected.
Dt.3.5.03 (H.K. Rathod,J.) Vyas