{"id":61463,"date":"2011-09-05T00:00:00","date_gmt":"2011-09-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/divisional-vs-hasmukhbhai-on-5-september-2011"},"modified":"2016-04-05T07:23:10","modified_gmt":"2016-04-05T01:53:10","slug":"divisional-vs-hasmukhbhai-on-5-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/divisional-vs-hasmukhbhai-on-5-september-2011","title":{"rendered":"Divisional vs Hasmukhbhai on 5 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Divisional vs Hasmukhbhai on 5 September, 2011<\/div>\n
Author: Ravi R.Tripathi,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/16755\/2010\t 10\/ 10\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 16755 of 2010\n \n\n \n \n\n\n \n\nFor\nApproval and Signature:  \n \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE RAVI R.TRIPATHI\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n\n\n \n\n=========================================================\n\n\n \n\nDIVISIONAL\nCONTROLLER - Petitioner(s)\n \n\nVersus\n \n\nHASMUKHBHAI\nSHANKARBHAI SOLANKI - Respondent(s)\n \n\n=========================================================\nAppearance : \nMR\nHARDIK C RAWAL for\nPetitioner(s) : 1, \nMR NK MAJMUDAR for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAVI R.TRIPATHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 03\/08\/2011 \n\n \n\n \n \n\n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\t\tLearned
\nAdvocate, Mr.Hardik C Rawal, for the petitioner moves draft
\namendment.  The same is granted.\n<\/p>\n
2.\t\tThe
\nDivisional Controller, Godhra (GSRTC) is before this Court being
\naggrieved by an award and order dated 10\/05\/2010 passed by the
\nlearned Presiding Officer, Labour Court, Godhra in Reference (LCG)
\nNo.179 of 2004.\n<\/p>\n
3.\t\tLearned
\nAdvocate for the petitioner strenuously contended that the learned
\nJudge of the Labour court has erred in ordering payment of 75% of the
\nback wages (from the date of termination till the date of
\nsuperannuation i.e. from 24\/07\/2000 to 30\/11\/2006) with consequential
\nbenefits and also the post retiral benefits by calculating his
\nservice from the date of dismissal till the date of superannuation
\n(30\/11\/2006).  The learned Judge was further pleased to award an
\namount of Rs.1001\/- towards the expenses to the workman.\n<\/p>\n
4.\t\tLearned
\nAdvocate for the petitioner invited attention of the Court to the
\ndocuments produced before the Court below being Exh.35 wherein as
\nmany as 16 prior defaults (other than the the present one) are
\nrecorded, of that 08 are pertaining to unauthorized absence. Learned
\nAdvocate for the petitioner invited attention of the Court to those
\ndefaults of unauthorized absence by making available said information
\nin tabular form.\n<\/p>\n
Sr.\n<\/p>\n
No.\n<\/p>\n
Sr.No.\n<\/p>\n
\t\t\tIn Exh.35 document<\/p>\n
Date
\n\t\t\ton which the respondent-workman unauthorized absence.\n<\/p>\n
Number
\n\t\t\tof days for which respondent – workman remained unauthorized
\n\t\t\tabsence.\n<\/p>\n
01<\/span><\/p>\n
03<\/span><\/p>\n
10\/01\/1975
\n\t\t\tto 13\/01\/1875<\/p>\n
04<\/span>
\n\t\t\tdays<\/p>\n
02<\/span><\/p>\n
04<\/span><\/p>\n
07\/12\/1974
\n\t\t\tto 06\/01\/1974<\/p>\n
31<\/span>
\n\t\t\tdays<\/p>\n
03<\/span><\/p>\n
05<\/span><\/p>\n
08\/06\/1975
\n\t\t\tto 12\/06\/1975<\/p>\n
05<\/span>
\n\t\t\tdays<\/p>\n
04<\/span><\/p>\n
06<\/span><\/p>\n
16\/04\/975
\n\t\t\tto 21\/04\/975<\/p>\n
06<\/span>
\n\t\t\tdays<\/p>\n
05<\/span><\/p>\n
10<\/span><\/p>\n
09\/05\/1977
\n\t\t\tto 28\/05\/1977<\/p>\n
20<\/span>
\n\t\t\tdays<\/p>\n
06<\/span><\/p>\n
11<\/span><\/p>\n
09\/12\/1977
\n\t\t\tto 21\/12\/1977<\/p>\n
13<\/span>
\n\t\t\tdays<\/p>\n
07<\/span><\/p>\n
12<\/span><\/p>\n
04\/07\/1977
\n\t\t\tto 09\/07\/1977<\/p>\n
06<\/span>
\n\t\t\tdays<\/p>\n
08<\/span><\/p>\n
16<\/span><\/p>\n
03\/01\/1984
\n\t\t\tto 05\/01\/984<\/p>\n
03<\/span>
\n\t\t\tdays<\/p>\n
09<\/span><\/p>\n
17<\/span><\/p>\n
02\/12\/1999
\n\t\t\tto 24\/07\/2000<\/p>\n
236<\/span>
\n\t\t\tdays<\/p>\n
5.\t\tIn
\nthe present instance the workman remained absent from 02\/12\/1999 to
\n24\/07\/2000. The date on which he was dismissed from his service on
\naccount of unauthorized absence for the period to 236 days.\n<\/p>\n
6.\t\tLearned
\nAdvocate for the petitioner submitted that the matter requires
\nconsideration, inasmuch as, the award of 75% of back wages and
\nconsequential benefits will come to Rs.7,49,873\/-.\n<\/p>\n
7.\t\t RULE.\n<\/p>\n
 Learned Advocate, Mr.Majmudar, for the respondent – workman
\nwaives service of notice of Rule.\n<\/p>\n
 On a request made by learned Advocate for the petitioner the matter
\nis taken up for final hearing to which learned Advocate for the
\nrespondent has no objection.\n<\/p>\n
8.\t\tIt is
\nreally painful that the persons in-charge of the affairs do not
\ndischarge their duty as required under the law, otherwise present
\ncase would not have arisen, if the authorities had taken action
\nagainst the respondent – workman right in the year 1974 when he
\nhad remained unauthorizedly absent for 31 days. As it is mentioned in
\nExh.35 as to what punishment was awarded in those earlier instances,
\nthe same is not reproduced here.  But the perusal of the same reveals
\nas to how lightly the persons in-charge of the employees have treated
\n‘unauthorized absence’ of the respondent – workman. In one case
\nwhen he was absent from 08\/06\/1975 to 12\/06\/1975, the only penalty
\nimposed is fine of Rs.5\/-. In other cases his increment was withheld
\nfor a period of six months, three months or a like. Sometime ‘with
\nfuture effect’ and many a times ‘without future effect’.  This is the
\nseriousness with which the authority has been treating the instances
\nof unauthorized absence which was required to be considered to be a
\ngrave misconduct on the part of the employee, because he is serving
\nin an organization like GSRTC which is providing ‘service to the
\npublic’ at large.\n<\/p>\n
9.\t\tIn
\nthe present case, the learned Judge has held that out of the period
\nmentioned to be of unauthorized absence i.e. from 02\/12\/1999 to
\n24\/07\/2000 only period from 02\/12\/1999 to 12\/12\/1999 can be held to
\nbe of unauthorized absence.  The learned Judge has believed that
\nthereafter the respondent – workman had sent an application
\nalongwith medical certificate.  Learned Advocate for the
\nrespondent-workman did make available for perusal application date
\n12\/12\/1999 alongwith medical certificate but the learned Advocate is
\nnot able to read the contents thereof because of illegible
\nhandwriting.  Learned Advocate for the respondent submitted that the
\nrespondent who is present in the Court is suffering from tuberculosis
\nof intestine.  He fairly submitted that this is only on oral
\ninstructions given by the respondent – workman who is present
\nin the Court but he does not have any certificate from medical expert
\nin support of this submission.\n<\/p>\n
10.\t\tTaking
\ninto consideration the past history of unauthorized absence, more
\nparticularly, taking into consideration earlier 10 instances of
\nunauthorized absence, this Court is of the opinion that the
\nsubstitution of punishment of dismissal by non-payment of 25 % back
\nwages is no punishment for a grave misconduct of an employee of
\npublic organization.  Even if the learned Judge had come to the
\nconclusion that for the rest of the period i.e. 12\/12\/1999 to
\n24\/07\/2000 as the respondent – workman had sent an intimation
\nto the authority, he cannot be held to be unauthorizedly absent.  The
\nlearned Judge has ignored an important aspect of the matter that is
\nthe respondent – workman for the reasons best known to him did
\nnot co-operate the department – authority in the departmental
\nproceedings held against him.\n<\/p>\n
10.1\t\tLearned
\nAdvocate for the respondent though inquired repeatedly with the
\nrespondent – workman, he is not able to give any convincing
\nreason for not remaining present in the departmental proceedings and
\nnot co-operating to the authorities in the departmental proceedings.
\nThe respondent – workman instructed learned Advocate to state
\nbefore this Court that on one date of departmental proceedings, he
\ndid not remain present in the departmental proceedings because his
\nniece had died. This instruction given by the respondent, who is
\npresent in the Court, is not of much significance for the reason that
\nthe departmental proceedings did not get over in one single hearing
\nas it is mentioned by the learned Judge in paragraph No.3 of the
\naward and order that charge-sheet No.52 of 2000 dated 04\/02\/2000 was
\nserved to the respondent – workman as well as Notice dated
\n05\/04\/2000 and 24\/04\/2000 were served for personal hearing.  It is
\nalso recorded by the learned Judge that on 10\/04\/2000 respondent –
\nworkman had asked for an adjournment but thereafter he
\ndid not remain present and therefore the
\ndepartmental proceedings
\nwere required to be concluded in his absence.  It is also recorded by
\nthe learned Judge of the Labour Court that the respondent –
\nworkman was served with a Notice dated 26\/04\/2000 to remain present
\non 05\/05\/2000 but he did not remain present.  The respondent –
\nworkman was served with the second show-cause notice which was
\nreplied by the respondent – workman on 26\/06\/2000 alongwith the
\nmedical certificate. From the aforesaid facts, it is clear that the
\nrespondent – workman had remained absent without prior
\npermission of the higher authority.  The learned Judge recorded that
\nthe respondent – workman did not honour Notice dated
\n18\/01\/2000.  Thus the conduct of the respondent is clearly depicted
\nby the learned Judge.\n<\/p>\n
11.\t\tTaking
\ninto consideration the fact that the learned Judge has overlooked the
\nprior instances of unauthorized absence while passing the order of
\npayment of 75 % back wages, it warrants interference and modification
\nof the award and order at the hands of this Court.\n<\/p>\n
12.\t\tWhile
\ndeciding about the quantum of back wages to be awarded to the
\nrespondent – workman the learned Judge of the Labour Court has
\nmentioned in paragraph No.10(D) that as the period of unauthorized
\nabsence is only from 02\/12\/1999 to 21\/12\/1999, the punishment of
\ndismissal is excessive and therefore the order of reinstatement is
\nrequired to be passed on
\nthe original post but as the respondent – workman has already
\nreached the age of superannuation on 30\/11\/2006, the order of
\nreinstatement is not passed.\n<\/p>\n
12.1\t\tIt
\nis thereafter the learned Judge of the Labour Court has considered
\nthe other factors for passing an order of awarding 75 % back wages.
\nIt is recorded by the learned Judge of the Labour Court that it is
\nstated by respondent in his cross-examination that though he was
\ngoing to find out the work, he did not get the same; there are three
\nsons and one daughter in his family; that his wife is housewife and
\nwas earning and therefore they were able to meet with the household
\nexpenses. He was not earning anything to meet household expenses. The
\nlearned Judge has then recorded that first party i.e. employer has
\nnot produced any evidence to show that after the termination of
\nservice of the respondent – workman, he had earned any income
\nand taking into consideration the report submitted by the workman on
\n12\/12\/1999 about his absence, the learned Judge has awarded 75 % back
\nwages.\n<\/p>\n
13.\t\tLearned
\nAdvocate for the petitioner invited attention of the Court to the
\nfollowing decisions of the Hon’ble Apex Court wherein the Hon’ble
\nApex Court has considered various aspects like ‘the facts of the
\ncase’, ‘place of employer’, ‘tenure of employment’ and other relevant
\ncircumstances.\n<\/p>\n
Devinder
\n\tSingh Vs. Municipal Council Sanaur reported in (2011) 6 SCC 584.\n<\/p>\n
Rajasthan
\n\tLalit Kala Academy Vs. Radhey Shyam, reported in AIR 2009 SC (Supp)\n<\/p>\n
\t919.<\/p>\n
Jagbir
\n\tSingh Vs. Haryana State Agricultural Marketing Board & Anr.,
\n\treported in AIR 2009 SC 3004.\n<\/p>\n
Faridan
\n\tVs. State of Uttar Pradesh, reported (2010) 1 SCC 497.\n<\/p>\n
Ashok Kumar Sharma Vs.
\n\tOberoi Flight Service, reported in (2010) 1 SCC 142.\n<\/p>\n
13.1\t\tLearned
\nAdvocate for the petitioners while making his submissions has relied
\nupon the paragraph Nos.16 and 17 of the decision rendered in case of
\nDevinder Singh (Supra) which
\nreads as under:\n<\/p>\n
“16. In Silver Jubilee
\nTailoring House v. Chief Inspector of  Shops and Establishments<\/a> 1974
\n(3) SCC 498 the three Judge Bench held that the tailors employed in a
\ntailoring shop, who were paid according to their skill and work and
\nthe quality of whose work was regularly checked were employees
\ncovered by the Andhra Pradesh (Tilengana Area) Shops and
\nEstablishments Act, 1951. In L. Robert D’souza v. Executive
\nEngineer<\/a> (1982) 1 SCC 645 the Court held that even a daily rated
\nworker would be entitled to protection of Section 25-F of the Act if
\nhe had continuously worked for a period of one year or more.\n<\/p>\n
17. Section 25 couched in
\nnegative form. It imposes a restriction on the employer’s right
\nto retrench a workman and lays down that no workman employed in any
\nindustry who has been in continuous service for not less then one
\nyear under an employer shall be retrenched  until he has been given
\none month’s notice in writing indicating the reasons for
\nretrenchment and the period of notice has expired or he has been paid
\nwages for the period of notice and he has also been paid, at the time
\nof retrenchment, compensation equivalent to fifteen days’
\naverage pay for every completed year of continuous service or any
\npart thereof in excess of six months and notice in the prescribed
\nmanner has been served upon the appropriate Government or the
\nauthority as may be specified by the appropriate Government by
\nnotification in the Official Gazette.”\n<\/p>\n
(emphasis
\nsupplied)<\/p>\n
13.2\t\tLearned
\nAdvocate for the petitioner while making his submission has relied
\nupon paragraph No.19 of the decision rendered in Rajasthan Lalit
\nKala Academy (Supra) which
\nreads as under:\n<\/p>\n
“19.\tIt
\nappears to us that in the present case there has not been due
\napplication of mind either by the Labour Court or the High Court on
\nthe question of reinstatement and payment of 25% back-wages. The only
\nground on which reinstatement and continuity of service has been
\nordered is because the order of termination has been held to be
\nunlawful. Similarly, 25% back-wages have been awarded for the reason
\nthat the services of the petitioner were terminated with immediate
\neffect but no specific reason as such has been assigned for the award
\nof the said backwages. In our opinion, though, illegality of the
\norder of termination is one of the prime considerations for
\ndetermining the question and quantum of back-wages, but it cannot be
\nthe sole criterion therefor. A host of other factors, a few
\nenumerated above, are required to be taken into consideration before
\nissuing directions in that behalf. Therefore, the award of the Labour
\nCourt to that extent cannot be sustained. However, we feel that at
\nthis distant time, it would not be fair to the respondent-workman to
\nremit the matter back to the Labour Court or the High Court for fresh
\nconsideration of the issue.\n<\/p>\n
In the light of the observations referred to supra and having regard
\nto the nature and the period of services rendered by the respondent
\nand the fact that his services were terminated initially on 4th
\nApril, 1981 and then on 31st January, 1985 and the vicissitudes of
\nlong-drawn litigation, the respondent has undergone for over 27
\nyears, interest of justice would be met if instead and in place of
\ndirection for reinstatement and back-wages–a sum Rs.3 lakhs is
\ndirected to be paid to the respondent by
\nway of compensation. We direct accordingly. The payment shall be made
\nwithin eight weeks from today, failing which it shall carry interest
\n@ 9% per annum
\nfrom the date of
\nthis judgment till the date of actual payment. We may note that in
\nthe affidavit, filed in response to the query raised by the Court on
\n29th April, 2008, it is stated that if the present appeal is
\ndismissed, the appellant would be liable to pay to the respondent
\nmore than Rs.8 lakhs. It goes without saying that the said amount of
\ncompensation is over and above the amount, the respondent is entitled
\nto receive in terms of award dated 24th September, 1983, which has
\nattained finality.”\n<\/p>\n
(emphasis
\nsupplied)<\/p>\n
14.\t\tIn
\nlight of the aforesaid decisions of the Hon’ble the Apex Court this
\nCourt is of the opinion that it will be in the fitness of things if
\ninstead of 75 % back wages, a lump sum amount of compensation is
\nawarded to respondent – workman and the award made by the
\nlearned Judge of the Labour Court is modified to that effect only.\n<\/p>\n
15.\t\tLearned
\nAdvocate for the petitioner submitted that  the respondent –
\nworkman is entitled for Provident Fund (his own contribution and
\nequal contribution from the employer), Gratuity and encashment of
\nunavailed leave.  Besides this, the respondent – workman is not
\nentitled to any other benefits, as there is no scheme for that in the
\npetitioner – Corporation.\n<\/p>\n
16.\t\tTaking
\ninto consideration the aforesaid facts, this Court is of the opinion
\nthat amount of Rs.1 Lac (Rupees One Lac) be awarded by way of lump
\nsum compensation in lieu of reinstatement as the respondent-workman
\nhas already reached the age of superannuation and that will meet the
\nends of justice. It is clarified at the request of the learned
\nAdvocate for respondent – workman that the amount of Rs.1 Lac
\nbe paid in addition to the amount payable to respondent by way of PF
\nand Gratuity and that while making calculation of gratuity amount the
\ndate of retirement of the respondent – workman should be
\ntreated as of 30\/11\/2006 (the date on which he reached for
\nsuperannuation).\n<\/p>\n
17.\t\tLearned
\nAdvocate for the petitioner, Mr.Raval, showing grace stated that this
\nentire amount will be paid to the respondent – workman at the
\nearliest but not later than 05\/09\/2011.  It goes without saying that
\nthe amount of PF and gratuity will bear the statutory rate of
\ninterest i.e. 9 % on and the amount which is unpaid. Rule is made
\nabsolute to the aforesaid extent only.\n<\/p>\n
(RAVI
\nR TRIPATHI, J.)<\/p>\n
sompura<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Divisional vs Hasmukhbhai on 5 September, 2011 Author: Ravi R.Tripathi, Gujarat High Court Case Information System Print SCA\/16755\/2010 10\/ 10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16755 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-61463","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDivisional vs Hasmukhbhai on 5 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/divisional-vs-hasmukhbhai-on-5-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Divisional vs Hasmukhbhai on 5 September, 2011 - 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