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2015 DIGILAW 742 (GUJ)

Salim Mohmad Patel v. S. T. Corporation

2015-07-29

S.R.BRAHMBHATT

body2015
ORDER : S.R. Brahmbhatt, J. 1. Heard learned counsel for the petitioner. The petitioner, who happen to be 2nd party-workman in Reference T. No. 19 of 2011, in Labour Court, Bharuch, has approached this Court by way of this petition filed under Articles 226 and 227 of the Constitution of India, challenging the order and award dated 22.08.2014, whereunder the Labour Court has rejected the reference on the ground and reasoning mentioned thereunder. Facts in brief, as could be culled out from the award and the petition, would indicate that the workman was to go abroad and hence he had obtained No Objection Certificate for taking the passport and taking No Objection Certificate for leaving the country. He had put up an undertaking, whereunder he had said that I will obtain leave admissible and in case if he extended the leave, the extension would be sought for and in case if there is none, the same shall be treated as his resignation from the service. The workman stopped going to the employer from 05.01.2007, as he left for U.K. and on returning he went to report and instead of permitting him to join or treating him to be unauthorizedly absent, the Corporation acted upon the undertaking which contain his resignation to be resignation and approved it and hence the workman was constrained to raise industrial dispute, which was referred to the Court, wherein it was marked as Reference T. No. 19 of 2011. The Labour Court after perusing the relevant documents came to the conclusion that the reference is required to be rejected and accordingly rejected vide order dated 22.8.2014, which is subject matter of challenge in this petition. 2. Learned counsel for the petitioner has invited this Court's attention to the findings of the Court and contended that the undertaking filed by the petitioner could not have been treated as a resignation and the workman was required to be treated as at the best unauthorizedly absent for the period in question and, therefore, he deserved to be given opportunity to explain his conduct. The action of the Corporation in treating the resignation of the workman to be a resignation simplicitor from the date of his leaving the country was, therefore, unfortunate and illegal and is required to be quashed and set aside. 3. The action of the Corporation in treating the resignation of the workman to be a resignation simplicitor from the date of his leaving the country was, therefore, unfortunate and illegal and is required to be quashed and set aside. 3. This Court is of the view that this petition is required to be dismissed in limine for the following reasons. The reasoning adopted by the Labour Court clearly indicate that the workman was rightly treated to have left the job after tendering his resignation, as the workman did not do his part a bit. The authority was entitled to act upon the undertaking in which the workman has unequivocally stated that in the eventuality of he being not returning to job, the same shall be treated as resignation and when the workman in the first instance did not bother to avail any leave, if any, thereafter he cannot be permitted to say that his conduct ought to have been treated as misconduct and he should have been visited with charge-sheet so as to afford an opportunity. This appears to have been complete misconduct on the part of the workman, as the workman has consistently forgotten that the undertaking was unequivocally clear in which he had undertaken to leave the country only after obtaining leave and in the eventuality of he not being returning in the job, the same is treated as resignation. The resignation was, therefore, treated to be one from the date when he left the job. That being so, the workman cannot now be permitted to resurrect the concept of employer and employment, so far as the undertaking is concerned, as the undertaking governs, in which the workman's unequivocal assurance was merely acted upon by the Corporation. The Labour Court has appreciated this aspect and, therefore, the same being just and proper. This Court is not inclined to interfere therewith. As a result thereof, petition fails and is accordingly dismissed. However, there shall be no order as to costs.