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Gujarat High Court · body

2016 DIGILAW 713 (GUJ)

Executive Engineer v. Avinash A. Pandya

2016-03-31

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Ms. Hathi, learned advocate for the petitioners and Mr. Jani, learned advocate for the respondent. 2. In present petition, the petitioner panchayat has challenged award dated 4.11.2006 passed by the learned Labour Court at Jamnagar in Reference (LCJ) No. 226 of 2000 whereby the learned Labour Court directed the petitioner panchayat to reinstate the respondent on his original post with continuity of service and to pay 75% of total backwages. 3. So far as the factual backdrop is concerned, it has emerged from the submissions by learned advocates for the petitioner panchayat and the respondent and the material available on record that the respondent herein, who was working as Work Charge Mistry at the relevant time with the petitioner panchayat, raised industrial dispute against alleged termination. The industrial dispute was referred for adjudication to the learned Labour Court at Jamnagar. The order of reference was registered as Reference (LCJ) No. 226 of 2000. During the pendency of the reference before the learned Labour Court, the claimant filed his statement of claims, wherein he claimed and alleged that he was employed by the petitioner panchayat and he was working as Mistry, Class-IV since July 1981 and at the relevant time his salary was Rs. 5,900/- and that without any fault on his part, his service was illegally and arbitrarily terminated with effect from 3.8.2000. He submitted that his service was terminated without following procedure prescribed by law. He also alleged that before terminating his service, opportunity of hearing was not granted, neither retrenchment compensation was paid. It was claimed that termination of service of the claimant deserves to be set aside and the petitioner panchayat should be directed to reinstate him with consequential benefits. 4. The reference was opposed by the petitioner panchayat by filing written statement (Exh. 4). In the written statement, the petitioner panchayat denied the allegations in the statement of claims. The petitioner panchayat claimed that before terminating service of the respondent, several notices were issued and the respondent's explanation was called for and opportunity to explain/defend his case was granted. The petitioner claimed that the respondent was employed in Class-IV and order of posting the respondent at Jamnkalyanpur was passed and after having reported for duty. It was further claimed that after proceeding on leave he did not return and did not resume his duties. The petitioner claimed that the respondent was employed in Class-IV and order of posting the respondent at Jamnkalyanpur was passed and after having reported for duty. It was further claimed that after proceeding on leave he did not return and did not resume his duties. The petitioner also claimed that without any intimation and without permission, the respondent remained absent from duty continuously for 3 months and that, therefore, when, even after several intimations asking him to report for duty, any response was not received from the respondent, the service of the respondent was terminated with effect from 31.5.2000. 5. After the stage of pleadings was concluded, the workman placed certain documents on record which were accepted by the learned Labour Court at Exhs. 5/1 to 5/46. The petitioner also placed documents on record which were accepted at Marks 11/1 to 11/12. The deposition of the claimant was recorded on record at Exh. 53 and so far as the petitioner is concerned, it did not examine any witness. After the stage of evidence was closed, the learned Labour Court heard submissions by learned advocates for the petitioner and the respondent and after considering the evidence on record and the submissions by learned advocates for the contesting parties, the learned Labour Court passed the award with the aforesaid directions. Feeling aggrieved by the said award and directions, the petitioner panchayat has taken out present petition. 6. Ms. Hathi, learned advocate for the petitioner panchayat submitted that the respondent was working as Work Charge Mistry under Irrigation Department of Panchayat and he was transferred/posted from Jamnagar to Taluka Panchayat at Jamkalyanpur vide order dated 1.10.1999. She further submitted that on 20.10.1999, the respondent reported for duty at Jamkalyanpur and thereafter, he left the office and from the same day, i.e. from 20.10.1999 without informing his superior and without giving any leave application and seeking any permission or without intimation of any nature whatsoever to anyone, he did not report for duty and continued to remain absent for more than 3 months. She also submitted that since the respondent was not reporting for duty, a show cause notice was issued on 7.3.2000 whereby reply/explanation was called for. In response to the said notice, the respondent submitted a vague reply vide communication dated 15.3.2000. Thereafter, the petitioner panchayat issued notices dated 17.4.2004 and 24.4.2004 followed by notices dated 23.5.2000 and 25.4.2000. She also submitted that since the respondent was not reporting for duty, a show cause notice was issued on 7.3.2000 whereby reply/explanation was called for. In response to the said notice, the respondent submitted a vague reply vide communication dated 15.3.2000. Thereafter, the petitioner panchayat issued notices dated 17.4.2004 and 24.4.2004 followed by notices dated 23.5.2000 and 25.4.2000. Learned advocate for the petitioner panchayat also submitted that the petitioner had offered personal hearing to the respondent which was scheduled on 29.9.2000. Learned advocate for the petitioner claimed and submitted that the respondent did not remain present during the personal hearing. Learned advocate for the petitioner submitted that before passing order terminating the service of the respondent, the petitioner had followed the procedure prescribed by the State Government vide resolutions/notifications dated 14.9.1978 and 25.5.1989 and that, therefore, the action of the petitioner cannot be faulted. Learned advocate for the petitioner submitted that since the instructions and guidelines by the State Government are binding to the District Panchayat the panchayat had followed the procedure prescribed vide resolutions/notifications dated 14.9.1978 and 25.5.1989 and that, therefore, it cannot be said that the petitioner did not follow principles of natural justice on the ground that the domestic enquiry was not conducted. She further submitted that in view of the fact that the respondent was working only on work charge basis, direction for reinstatement should not have been passed and/or direction granting continuity of service should not have been passed and in any case backwages should not have been awarded. 7. The submissions by learned advocate for the petitioner panchayat are opposed by the learned advocate for the respondent. He submitted that the petitioner's action of terminating service of the respondent is taken in violation of principles of natural justice and that, therefore, the same is not sustainable and is rightly set aside by the learned Labour Court. Learned advocate for the respondent submitted that reliance placed in the notifications/resolution dated 14.9.1978 and 25.5.1989 is misconceived and even if it is assumed that so-called compliance of the said guidelines/instructions would suffice the requirement to follow the principles of natural justice, then also the action of the petitioner is vitiated because the petitioner did not follow even the said instructions and the service of the respondent was terminated arbitrarily without following any procedure. He submitted that the service record of the respondent is clean and blotless. He submitted that the service record of the respondent is clean and blotless. He also submitted that the respondent had submitted request dated 22.12.1999 to grant the leave and along with the said communications, he had also forwarded certificate issued by the doctor certifying that he suffered ill-health and therefore was unable to report for duty. Learned advocate for the respondent submitted that during the period when he could not report for duty, he had addressed letters from time to time and informed the competent authority of the petitioner panchayat about his inability on account of his ill-health. He also submitted that not only the respondent suffered ill-health but even his mother was ill and therefore, he was unable to report for duty. Learned advocate for the respondent submitted that the respondent reported for duty on 22.3.2000 and at that time, he had also submitted fitness certificate. Learned advocate for the respondent submitted that the respondent was asked to submit his explanation within 8 days, however, the respondent was visited with second show cause notice before completion of the said period of 8 days. Learned advocate for the respondent submitted that the respondent had submitted his reply in response to the notice dated 24.4.2000, wherein he had mentioned the reasons and circumstances on the ground that he was not able to attend duty. According to learned advocate for the respondent, in the reply/explanation given by the respondent, it was clear that the petitioner's conclusion that he had voluntarily left the service, was incorrect and unjustified and that he could not resume his duty for some time because of his ill-health and also because of the illness of his mother. Learned advocate for the respondent submitted that in view of the reasons and circumstances on account of which the respondent could not attend the duty and in view of the fact that when the respondent reported for duty, he had submitted medical/fitness certificate, the award and final direction by the learned Labour Court are just and correct and do not warrant any interference. 8. I have heard learned advocates for the petitioner panchayat and the respondent and have also considered the impugned award and other material on record. 9. 8. I have heard learned advocates for the petitioner panchayat and the respondent and have also considered the impugned award and other material on record. 9. It has emerged from the material on record that the petitioner terminated the service of the respondent vide order dated 31.5.2000 after following the procedure prescribed by the State Government through resolutions/notifications dated 14.9.1978 and 25.5.1989 and before passing the order terminating the service of the respondent, show cause notices were issued and even personal hearing was offered. 10. It is pertinent that it is not even the case of the petitioner that it had conducted regular and formal departmental enquiry after issuing show cause notice/charge-sheet. On the contrary, the petitioner has contended that it had followed the procedure prescribed under the resolutions issued by the State Government and that, therefore, there was no need to conduct formal departmental enquiry. 11. It is also undisputed position of fact that at the time when the service of the respondent was terminated, retrenchment compensation was not paid. 12. The petitioner has come out with the case that continuous absence of the respondent for more than 3 months was considered as voluntary abandonment of service and before considering respondent's action as above mentioned of service the procedure prescribed by the Government was followed and that, therefore, when the petitioner's action could not have been faulted on the ground that formal domestic enquiry was not conducted inasmuch as the said procedure was not required to be followed. 13. In present case, it is pertinent to note that in response to the notices issued by the petitioner, the respondent forwarded his reply/explanation. 14. The very fact that the respondent had submitted his explanation in response to the notices issued by the petitioner was sufficient to establish that the petitioner had not voluntarily abandoned the service. The merits or otherwise of his reply stand on different platform and it may be verified by the petitioner. 15. However, the fact that reply to the notices was given made it clear that there was no room for assumption that the workman had voluntarily abandoned the service. 16. Had it been voluntary abandonment of service, the workman would not have submitted reply/explanation in response to the notices. 15. However, the fact that reply to the notices was given made it clear that there was no room for assumption that the workman had voluntarily abandoned the service. 16. Had it been voluntary abandonment of service, the workman would not have submitted reply/explanation in response to the notices. When the respondent submitted his reply/explanation, there was no justification for the petitioner to proceed against the respondent on the assumption that he had voluntarily abandoned the service. 17. Even if the conduct of the respondent of remaining absent without permission and/or without any intimation was an act of indiscipline and misconduct, then appropriate action in accordance with the law and after complying the principles of natural justice should have been followed. 18. The petitioner would claim that it had issued notices to the respondent asking to show cause about his absence it appears that in response to such notice, the respondent had submitted his explanation that he was suffering from ill-health and his mother was also not keeping in good health and that, therefore, he could not report for duty. 19. The explanation given by the respondent may be incorrect or may be unjustified and/or may be belated, however when reply was given the petitioner should not have proceeded on assumption about abandonment and if the explanation was found unsatisfactory, then action in accordance with the law and after following principles of natural justice could have been taken. Instead, the petitioner preferred to treat the respondent's action as voluntary abandonment of service. In this context it would be appropriate to take into account observations in the decision in the case of Vivek Nand Sethi (supra). In the said decision, Hon'ble Apex Court has observed, inter alia, that "22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Dr. Gurjeewan Garewal (Mrs. v. Dr. Dumitra Dash (Mrs.) and Others (2004) 5 SCC 263 . 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. [See State of Punjab v. Jagir Singh (2004) 8 SCC 129] and Karnataka State Road Transport Corporation & Anr. 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. [See State of Punjab v. Jagir Singh (2004) 8 SCC 129] and Karnataka State Road Transport Corporation & Anr. v. S.G. Koturappa & Anr. 2005 (2) SCALE 493 ]. 23. The contention raised at the Bar appears to be squarely covered by two decisions of this Court relied upon by Mr. Alex. In Syndicate Bank (supra) Wadhwa, J. speaking for the Division Bench observed: "14. Two principles emerge from the decisions: (1) principles of natural justice and duty to act in a just, fair and reasonable manner have to be read in the Certified Standing Orders which have statutory force. These can be applied by the Labour Court and the Industrial Tribunal even to relations between the management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the Tribunal or Court adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record. 15. In the present case action was taken by the Bank under clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon him to report for duty within 30 days of the notice stating therein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period the Bank passed orders that Dayananda had voluntarily retired from the service of the Bank." It was further held: "18. The Bank has followed the requirements of clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in clause 16 of the Bipartite Settlement." 24. The aforementioned legal position was reaffirmed by a decision of three-Judge Bench in Punjab & Sind Bank (supra), wherein it has been held: "Under this rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job anymore and will stand retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto". In the fact situation obtaining therein it was held that there had been sufficient compliance for principle of natural justice. 25. In Syndicate Bank (supra), this Court noticed the decision of three- Judge Bench of this Court in D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259 whereupon the Industrial Tribunal had placed strong reliance. In D.K. Yadav (supra) admittedly no opportunity was given to the workman and no inquiry was held. In that situation, it was observed: "8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person." 20. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person." 20. In the said decision also the requirement to comply principles of natural justice is emphasized. Further, in present case the workman had offered explanation which clarified that he had not abandoned the service and he had had no intention to do so. Therefore, the petitioner could not have proceeded on such presumption. 21. The said decision of the petitioner is not found sustainable by the learned Labour Court in the light of the evidence available on record. 22. On appreciation of evidence available on record, the learned Labour Court has recorded finding of fact that the termination order dated 31.5.2000 is illegal and unjustified. Having reached such conclusion, the learned Labour Court has set aside the termination order dated 31.5.2000. 23. In the light of the above discussion and for the foregoing reasons, this Court is not inclined to interfere with the decision of the learned Labour Court directing the petitioner to reinstate the respondent. 24. At this stage, it is relevant to and necessary and appropriate to mention that during the hearing of the petition, the learned advocate for the petitioner submitted and declared that after the award and during the pendency of the petition, the respondent was reinstated by the petitioner with effect from 27.7.2007 (though the respondent reported for duty after such reinstatement on 8.8.2007). 25. She also submitted that after the respondent was reinstated during pendency of the petition, he worked with the petitioner until he reached age of superannuation in August 2015 and he was relieved, upon reaching age of superannuation, with effect form 31.8.2015. 26. In view of said fact and development of events also, there is no reason or justification to interfere with the order directing the petitioner to reinstate the respondent. Therefore, the said direction by the learned Labour Court and the said part of the award is not interfered with. 27. This leaves behind the issue with regard to the learned Labour Court's direction to pay 75% backwages. 28. On this count, it is pertinent to note that the conduct of the respondent viz. remaining absent from duty is not in dispute. 27. This leaves behind the issue with regard to the learned Labour Court's direction to pay 75% backwages. 28. On this count, it is pertinent to note that the conduct of the respondent viz. remaining absent from duty is not in dispute. It is an undisputed position of fact that the respondent had started remaining absent without permission and he continued to remain absent without any intimation. 29. The absence from duty continued for long time, i.e. for almost 3 months. 30. It was only when the petitioner started issuing notices that in response to one of the notices, the respondent forwarded an explanation/reply claiming that he was suffering from ill-health. 31. In this background, the observation or finding recorded by the learned Labour Court that the termination was effected out of victimisation is uncalled for and unjustified. 32. Though of course, the petitioner's action of passing the order of terminating the service of the respondent is, for the reasons discussed above, found to be defective and unsustainable. 33. However, the learned Labour Court is neither right nor justified in observing that the petitioner's action was taken out of victimisation. 34. There is no material on record to make such observation or such conclusion and/or to justify said observation and conclusion, more so when the factum about respondent's continuous absence for more than 3 months is established, rather it is an undisputed fact. 35. It comes out from the record that the respondent claimed that he was suffering from ill-health and his mother's health was also not good on account of which he could not resume the duty. Even if the said explanation is to be entertained, it does not justify the respondent's conduct of not seeking permission and/or not intimating the authority about the reason for his absent. 36. It is necessary to clarify that the respondent succeeds in present matter on technical aspect viz. defect on the part of the petitioner in taking action and passing the order terminating the respondent's service. 37. However, the decision to set aside the termination on account of said defect and on such technical ground, does not, by any standard, justify or dilute respondent's conduct of remaining absent without intimation or permission. 38. Besides this, it is also necessary to keep in focus that the petitioner was employed only on work charge basis. The said fact is undisputed. 39. 38. Besides this, it is also necessary to keep in focus that the petitioner was employed only on work charge basis. The said fact is undisputed. 39. Moreover, the respondent was employed as a person on technical post, i.e. Mistry and he possesses technical knowledge/qualification. Having regard to the fact that the respondent worked as Mistry (Carpenter), he would not have remained unemployed during the period of proceeding before the learned Labour Court and/or till he came to be reinstated on 27.7.2007. 40. Unfortunately, the learned Labour Court did not take the aforesaid aspects into account, more particularly the fact that the respondent was employed only merely on work charge basis and was not regularly selected permanent employee of the petitioner. 41. Having regard to the above-mentioned aspects, the order directing the petitioner to pay 75% backwages is unjustified and does not deserve to be sustained. 42. During the hearing of present petition, learned advocate for the petitioner has submitted that after the petitioner was reinstated on his original post, all benefits were granted and when he reached age of superannuation and was relieved from service upon reaching age of superannuation, retiral dues including provident fund, gratuity, etc. were paid to the respondent in accordance with the law and while he was in service, the benefit of the recommendations of 6th Pay Commission (which was extended to other regular and permanent employees) was also granted and paid to the respondent. 43. When above-mentioned aspects are taken into account it comes out clearly that the order directing the petitioner to pay 75% backwages is unjustified. 44. Therefore, the issue about modification of such direction arises. 45. The period between the date when the order of termination was passed and the order reinstating the respondent came to be passed, is of about 7 years. 46. As mentioned earlier, the respondent is a person with technical knowledge/qualification and therefore, he would not have remained unemployed. During his deposition, the respondent did not claim that he was unemployed. 47. From the material on record, the order directing the petitioner to pay 7% backwages is not justified, the said direction deserves to be set aside and modified and it is hereby modified. 48. Having regard to the facts and circumstances of the case and above discussed aspects and having regard to the fact that at time of termination, the respondent was drawing salary at Rs. 48. Having regard to the facts and circumstances of the case and above discussed aspects and having regard to the fact that at time of termination, the respondent was drawing salary at Rs. 5,900/- per month,, the Court is of the view that the direction pay backwages should be modified and reduced to 15% of total backwages. With the aforesaid clarifications and directions, the petition is partly allowed. Rule is made absolute to the aforesaid extent.