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LPA/1598/2007 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1598 of 2007
In
SPECIAL
CIVIL APPLICATION No. 423 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
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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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SURAT
MUNICIPAL CORPORATION - Appellant(s)
Versus
AMINESH
CHANDRAVADAN BODIWALA - Respondent(s)
=================================================
Appearance
:
MR PRASHANT G DESAI with Ms.
Rutul Desai for Appellant(s) : 1,
MR AK CLERK for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date : 13/05/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE G.B.SHAH)
1. We
have heard the learned counsel Mr Rutul Desai holding brief of Mr P G
Desai, learned counsel appearing for the appellant and Mr A K Clerk,
learned counsel for the respondent.
Being
aggrieved and dissatisfied with the order dated 25.7.2007 passed by
the learned Single Judge in Special Civil Application No.423 of 2001,
the appellant has preferred this appeal under clause 15 of the
Letters Patent on the grounds stated in the memo of Appeal.
2. The brief facts of the
present appeal are that the appellant is Surat Municipal Corporation
duly constituted under the provisions of the Bombay Provincial
Municipal Corporations Act, 1949. As per Resolution No.46 dated
11.5.1992, the respondent was appointed as a trainee and was serving
as Primary Health Worker (Male) from 23.3.1994. It was specifically
mentioned in the said Resolution that the training period of the
respondent would be of one year and within one year if the work of
the respondent was not found satisfactory, then the same may be
extended for further six months and thereafter during the extended
period also if the work of the respondent was not found satisfactory,
the appellant Corporation can terminate the services of the
respondent without issuing any notice. The service of the respondent
was terminated on 8.11.1995 as the respondent has remained absent
unauthorisedly. The respondent had filed Reference (LCS) No.783 of
1997 before the Presiding Officer, Labour Court, Surat seeking the
relief to reinstate him to his original post with full back wages. It
is contended by the respondent that since he was arrested in one
criminal offence and as he was in judicial custody, it was not
possible for him to attend his duty and so he remained absent from
duty.
3. Before the Labour Court,
on behalf of the appellant Corporation it was contended that the
respondent was a trainee and therefore, no notice was required to be
issued before terminating his service. However, the appellant
Corporation had issued show cause notice to the respondent but the
same had not been accepted by the respondent and had refused the said
notice. After hearing the parties, the Labour Court, by its
judgment and award dated 18.5.2000 was pleased to partly allow the
Reference (LCS) No.783 of 1997 filed by the respondent and the
learned Presiding Officer had directed the appellant Corporation to
reinstate the respondent to his original post with continuity of
service without paying any back wages. Being aggrieved and
dissatisfied with the judgment and award of the Labour Court, the
appellant herein preferred Special Civil Application No.423 of 2001.
The learned Single Judge has disposed of the said Special Civil
Application by order dated 25.7.2007 with a direction that the
workman should be reinstated in service but without any back wages
and without continuity of service. It is this order under challenge
by the appellants before this court.
4. The learned counsel for
the appellants has submitted that the learned Presiding Officer and
the Learned Single Judge ought to have considered that the respondent
is not a permanent employee of the Corporation and in case of
trainee, no lengthy procedure was required to be followed more
particularly when there was clear lapse on the part of the respondent
that too during the fixed training period. He has, then submitted
that before terminating the services of the respondent, the appellant
had already issued show cause notice to the respondent which was
returned with the postal endorsement “refused” and,
therefore, it cannot be said that the appellant Corporation had not
given any opportunity to the respondent as has been observed by the
learned Presiding Officer and the learned Single Judge.
5. The learned counsel Mr A
K Clerk appearing for the respondent has vehemently submitted that
before terminating the services of the respondent, no opportunity of
hearing was given to the respondent nor was there any departmental
inquiry held against the respondent for which the alleged misconduct
against the respondent for remaining absent without leave. He has,
then submitted that the Presiding Officer of the Labour Court has
rightly observed that the respondent was not paid one month’s notice
pay in accordance with the Standing Orders and, therefore, there is
violation of Section 25-F of the Industrial Disputes Act, 1947. He
has also submitted that the respondent was involved in a criminal
case and due to the circumstances beyond his control, he had remained
absent from duty and hence the same cannot be treated as
unsatisfactory work or misconduct.
6. We have considered the
above referred submissions made by the learned counsel for the
parties in light of the documentary evidence forthcoming on the
record and proceedings of this appeal. It is important to note that
as per Resolution No.46 dated 11.5.1992, the respondent was appointed
as Trainee. As per the approved conditions of the said Resolution
No.46, the training period would be of one year and within one year
if the training work of the respondent was not found satisfactory
then the period of training may be extended and in spite of that if
the work of the respondent is not found satisfactory then the
appellant Corporation may terminate the service of the respondent.
During the training period, the respondent being paid a fixed amount
of Rs.1000/- per month towards work charges. Moreover, after the
completion of satisfactory training period, the services of the
respondent shall be counted from the day on which he was appointed
and this training period shall not be counted for the purpose of
service period or for any other purposes. Learned counsel for the
appellant has submitted that the Presiding Officer of the Labour
Court as well as the learned Single Judge appears to have not taken
into consideration the above referred resolution No.46 and the
approved conditions of the said Resolution dated 11.5.1992 which is
part and parcel of the appointment order of the respondent dated
22.3.1994 at Annexure ‘A’.
7. We have perused the
impugned award dated 18.5.2000 passed in Reference (LCS) No.783/97
and the order dated 25.7.2007 of the learned Single Judge passed in
Special Civil Application No.423 of 2001. The learned Presiding
Officer of the Labour Court has mainly observed that before
dismissing the present respondent from service, no opportunity was
given to the respondent nor was there any departmental inquiry held
against him and was not paid one month’s notice pay in accordance
with the Standing Orders and hence there is violation of Section 25-F
of the Industrial Disputes Act, 1947 (for short, ‘the Act’) and so
the termination of service of the present respondent is illegal.
Learned counsel for the appellant has then submitted that the learned
Single Judge has placed reliance on the list of events and
accordingly observed that the respondent was terminated from service
because he was involved in some criminal case and it is not in
dispute before him that the respondent workman was acquitted of the
said criminal case. The learned Single Judge has observed that right
from 20.4.1995 to 29.9.1995, the appellant Corporation was issuing
notices to the workman to show cause or explain as to why he was on
leave and further observed that this certainly would show frame of
the mind of the authorities of the Corporation. It is relevant to
note at this juncture that in the award and the affidavit-in-reply of
the respondent dated 17.9.2000 it has come on record that the police
had arrested the respondent and sent him to judicial custody and the
respondent was acquitted of the charges by the criminal court by
order dated 24.7.1996. The said acquittal order had been produced by
the respondent before the Presiding Officer, Labour Court but no
further details were forthcoming on the record either in the award or
in the records and proceedings of this appeal like date of
registration of the criminal case and its number, date, time and
place of offence, name of the complainant, name of the witnesses,
date of arrest of the respondent/accused, the date of filing of
Criminal Misc. Application by the respondent/accused for his release
on bail if at all filed, or what period he remained in judicial
custody etc. Moreover, the acquittal was by way of benefit of doubt
or clear acquittal and whether thereafter any appeal had been filed
against the said acquittal order before higher forum or not is also
not forthcoming on record. Thus, it appears that while discharging
their official duty right from 20.4.1995 to 29.9.1995 the appellant
Corporation had been issuing notices to the respondent regarding his
unintimated and unauthorised absence but we do not find any
ill-motive in the said action of the appellant as has been observed
by the learned Single Judge that it shows frame of the mind of the
authorities of the appellant Corporation.
8. The learned Single Jude
has also observed in para 8 of the order that in case of a trainee
when it is found that his training was not going on satisfactorily,
then such trainee is required to be informed of his shortcomings and
the defects so that he can improve and he can have a
self-introspection. The learned Single Judge has also observed that
in absence of such a communication to the respondent workman, he was
unable to hold that the period of training was extended because the
first part of the training was not satisfactorily completed. Learned
counsel for the appellant argues that to inform regarding the
shortcomings and defects, presence of the respondent was required
and in the present case the respondent had not completed his training
period of one year and the said information by Registered Post with
A.D. was issued to the respondent by the appellant but the same was
refused by the respondent and this fact had not been considered by
the learned Single Judge. We have gone through the record and we
find ourselves in agreement with the above referred submissions made
by the learned counsel for the appellant and in our view, the learned
Single Judge has not properly appreciated the above facts of the case
and erred in observing that the shortcomings and defects had not been
communicated by the appellant to the respondent.
9. Learned counsel for the
appellant has then submitted that it is relevant to note that the
respondent was appointed by order dated 22.3.1994 as Trainee for one
year and the respondent had joined duty from 25.3.1994 and remained
absent unauthorisedly since 4.2.1995 i.e. prior to the completion of
the period of one year and on 20.4.1995, the appellant Corporation
had issued memo to the respondent which was returned back and so
again on 25.5.1995 memo was issued and the same was returned with an
endorsement “refused”. Learned counsel for the appellant
has further submitted that regarding the second memo dated 25.5.1995
which had been returned with the postal endorsement “refused”
neither the Presiding Officer, Labour Court had taken any cognizance
nor any cognizance was taken by the learned Single Judge though the
said question/fact has not at all been challenged by the respondent
and for that we will go into the facts on the record chronologically
as under:
(i) Annexure ‘A’ is the
undated copy of the written statement filed by the first litigant
i.e. Surat Maha Nagarpalika in which in para 4 it is specifically
stated at the initial point of time that the postal article No.1008
dated 25.5.95 was sent by Registered Post A.D. was returned with the
postal endorsement “refused”.
(ii) The award dated
18.5.2000 is at pages 31 to 38. On page No.33 it is observed by the
learned Presiding Officer, Labour Court that number of times, the
covers forwarded to second party litigant i.e. the respondent had
returned but it appears to us that no cognizance had been taken by
the Labour Court to observe that the same was returned with the
postal endorsement “refused” as mentioned in the written
statement by the first party litigant i.e. the appellant or not. It
is important to note that it has also not been observed by the
Presiding Officer in the said award that the say of the first
litigant i.e. the present appellant in its written statement relating
to postal cover returned with postal endorsement “refused”
is incorrect.
(iii) In para 3 of the
Special Civil Application No.423 of 2001 it is averred by the
petitioner/appellant that the Corporation had also issued notice to
the respondent but the same had not been accepted by the respondent
and the respondent himself had refused to accept the said notice.
(iv) Pages 39 to 44 is the
affidavit-in-reply dated 17.9.2000 of the respondent and further
affidavit dated 20.11.2005 of the respondent is at pages No. 50 and
51. We have perused both the affidavits of the respondent and so far
as the above narrated facts at point No.(iii) relating to postal
article returned with the postal endorsement “refused” had
not been denied by the respondent or the respondent had not uttered a
single word relating to it.
(v) Para 12 at page No.5 of
this Letters Patent Appeal reads as under:
“Because the learned
single Judge ought to have considered that on 20.4.1995 the
Appellant-Corporation had issued the Memo to the respondent which was
returned back. It was also required to be considered by the learned
single Judge that again on 25.5.1995 the Memo was issued and the same
was returned with an endorsement of “refuse”.
From the above
facts forthcoming on the record, though nothing is mentioned on those
facts either in the award of the learned Presiding Officer or in the
judgment of the learned Single Judge though it clearly shows that
before terminating the services of the respondent, the appellant had
issued show cause notice memo dated 25.5.1995 to the respondent but
the said show cause notice was returned with postal endorsement
“refused”. Thus, in our view, it cannot be said that the
appellant Corporation had not given any opportunity to the respondent
but in fact the respondent had not accepted the said opportunity for
the reasons best known to him.
10. It is also
important to note that the appointment of the respondent as Primary
Health Worker (Male) was purely on training basis and subject to the
conditions laid down in Resolution No.46 dated 11.5.1992 which is
annexed at Annexure ‘A’. As per condition No.5 of the said
Resolution dated 11.5.1992, it is clear that if the Corporation found
that the Trainee has not satisfactorily completed the training
period despite extension of six months, the Corporation shall
terminate the services of the Trainee. As referred above, the
respondent had joined duty from 25.3.1994 and had remained absent
unreportedly and unauthorisedly since 4.2.1995 i.e. he had not
completed the training period of one year. As discussed above, the
training period was extended because the first part of the training
was not satisfactorily completed as he had remained absent
unauthorisedly. In para 6 of the affidavit-in-reply the respondent
has contended that he was acquitted by the Criminal Court on
24.7.1996. As discussed above, no further data regarding the said
criminal case has been forthcoming on record. Even during the
judicial custody he could have intimated about his leave to the
employer but nothing has been intimated by the respondent about his
unauthorised absence to the appellant. Under these circumstances, we
fail to understand as to how one can accept the observation of the
learned Presiding Officer, Labour Court that the departmental inquiry
could be initiated that too for a trainee worker more particularly
when the postal article forwarded to the Trainee had been returned
with the postal endorsement “refused”. From 4.2.1995, the
respondent remained absent as per the evidence forthcoming on the
record. On 28.8.1997, the respondent had applied to the appellant
Corporation stating all the facts and Reference was preferred by the
respondent before the Labour Court. There is substance in the
submission made by the learned counsel for the appellant that it was
required to be considered by the learned Presiding Officer, Labour
Court as well as by the learned Single Judge that the respondent had
filed Reference after an interval of two years, therefore, the
Reference itself was time barred.
11. Learned
counsel for the appellant has placed reliance on a decision in Nilesh
Bhatt v. Administrative Officer, Nagar Prathamik Shikshan Samiti 1996
(1) GLH 108 in which it has been held that an opportunity of
hearing before the termination from service need not be given to the
person whose appointment is for a fixed period. In the case on hand,
in spite of ample opportunity was given to the respondent, he had
refused to accept the postal article as referred above. Learned
counsel for the appellant has also submitted that the order passed by
the Corporation challenged before the Labour Court was as such not a
punitive order in nature but it was merely a discharge simplicitor
and, therefore, the appellant Corporation is not required to hold any
departmental inquiry against the respondent-Trainee employee. He has
placed reliance on a decision of the Apex Court in Viveka Nand
Sethi v. Chairman, J & K Bank Ltd. and Others (2005) 5 SCC 337
wherein it is held as under:
“The
principles of natural justice are required to be complied with having
regard to the fact situation obtaining therein. It cannot be put in a
straitjacket formula. It cannot be applied in a vacuum without
reference to the relevant facts and circumstances of the case. The
principle of natural justice, it is trite, is no unruly horse. When
the facts are admitted, an inquiry will be an empty formality.
In the present
case, as discussed above, it is indisputably admitted that the postal
articles were refused by the respondent and thus no requirement of
any further inquiry has arisen. We find ourselves in agreement with
this submission of the learned counsel for the appellant.
12. Learned
counsel for the appellant has then submitted that section 25F of the
Act is also not applicable to the trainee employee as the trainee
employee is not a workman and so industrial dispute also would not
lie before the Labour Court. We have seen that even the respondent
has not led any evidence to the effect that he had completed 240 days
in a preceding year and so section 25F of the Act would not be
applicable. He has also placed reliance on a decision in State
of Punjab v. Jagir Singh AIR 2004 SC 4757 in
which it is held that the question of compliance of the provisions of
Section 25-F of the Industrial Disputes Act would arise, if the
services of the concerned workman were terminated on a ground other
than misconduct and therefore, there is no requirement of compliance
of the provisions of Section 25-F of
the Act. Lastly the learned counsel for the appellant has placed
reliance
on a decision reported in Swaraj Tractors
Division, Punjab v. Raghbir Singh AIR 2004 SC 1234
wherein it is held that nothing on record to show that workman made
any attempt to communicate with employer seeking leave of absence and
workman remained absent without leave commits misconduct and
therefore, the order of termination is valid.
13. It is the
case of the respondent that since he was in judicial custody, it was
not possible for him to attend his duty as the said circumstances
were beyond his control and he remained absent from duty. We do not
find any substance in the said submission made by the learned counsel
for the respondent as we have already observed as above except the
acquittal order from the criminal case against the respondent as
forthcoming on record, no further data as narrated in para 7 above
were available on record to show that in fact the circumstances were
beyond the control of the respondent. Moreover, it is important to
note at this juncture that in spite of giving written intimation to
the respondent dated 25.5.1995 by Registered A.D. Post and he had
refused the said postal article and so now he cannot take advantage
by submitting that since he was in judicial custody it was not
possible for him to attend his duty without any further data relating
to said criminal case lodged against the respondent.
14. When an
employee is absent from duty even without prior intimation for a very
long period, it prima facie shows the lack of interest in one’s work
or job. Moreover, in the case on hand, in spite of giving written
intimation show cause notice/memo through postal article sent by
Registered Post with A.D., the said postal article had been returned
with endorsement ‘refused’ and under the circumstances that shows
lack of interest in work then how we can expect anything more from
the appellant Corporation. The respondent claims that there was no
negligence and because he was in judicial custody and because of
unavoidable circumstances he remained absent. But the burden lies on
the respondent to prove his case by placing relevant materials on
record. As discussed above, except date of acquittal of the criminal
case i.e. 24.7.1996, no further data of the said case such as
registration of the criminal case and its number, date, time and
place of offence, name of the complainant, name of the witnesses,
date of arrest of the respondent/accused, the date of filing of
Criminal Misc. Application by the respondent/accused for his release
on bail if at all filed, or what period he remained in judicial
custody etc. are not on record. Hence, the respondent has failed to
show his bonafides and interest in his duty to be performed by him
more particularly when he had refused to accept the show cause
notice/memo sent by post by the appellant.
15. From the
above discussion, we are of the considered opinion that the
respondent had remained absent unintimated and unauthorisedly and he
had deliberately chosen not to resume the duties after the break as
he had ‘refused’ to accept the postal article referred above. It
appears that the attention of the Labour Court though was drawn by
written reply, the learned Presiding Officer had not touched and
not considered that aspect and as the respondent had not denied the
fact that the intimation sent to him by Registered Post had been
refused by him, in our view, the question of remand of this matter to
the Labour Court does not arise at all. The Labour Court thus failed
to consider the conduct of the respondent in not joining his duties
despite having been asked to do so by Registered Post A.D. The
learned Single Judge also has not considered the above facts while
deciding the writ petition. We are conscious of the fact that while
sitting in Appeal, we can neither reassess the evidence nor can we
take a different view on the material on record, but we are of the
view that when clear omission of evidence forthcoming on record as
discussed above which have also been sidelined, then the same is
required to be taken care of at the appellate stage.
16. In the
result, this appeal succeeds and is allowed. The impugned award dated
18.5.2000 passed by the Presiding Officer, Labour Court, Surat in
Reference (LCS) No.783 of 1997 and the order dated 25.7.2007 passed
by the learned Single Judge in Special Civil Application No.423 of
2001 are set aside.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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