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2017 DIGILAW 172 (GUJ)

Babubhai Hathibha Vagad v. Divisional Controller

2017-01-23

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. By virtue of this petition, workman of Gujarat State Road Transport Corporation ('the Corporation' for short) filed the petition. He challenged award dated 8.6.2011 passed by the learned Labour Court in Reference No. 1541 of 2001 whereby the learned Labour Court rejected the reference filed by him. 2. So far as the facts involved in this case are concerned, it has emerged from the record that the original claimant was employed with the Corporation as Driver. Initially, he was engaged on daily wage basis/badli basis and subsequently, he was confirmed in service. The claimant suddenly and unauthorizedly and without any intimation to the Corporation allegedly stopped reporting for duty with effect from 16.11.1996. Consequently, his service was terminated after issuing charge-sheet and after conducting enquiry, the service of the claimant came to be terminated on 13.10.1998. Feeling aggrieved by the said decision, the claimant filed departmental appeal (first appeal) before the Appellate Authority. It appears that the Appellate Authority considered the appeal and with a view to granting opportunity to the claimant to improve his conduct, the termination order came to be set aside and the Appellate Authority directed that the workman may be engaged as fresh employee. 2.1 Feeling aggrieved by the said order, the employee filed second appeal. 2.2 On the other hand, in view of the order passed by the first Appellate Authority, the Corporation issued order appointing the claimant as fresh employee vide order dated 24.12.1999. 2.3 It is pertinent that despite the said order by the Corporation, the claimant did not report for duty. Instead took up a stand that since his second appeal is pending, he will not resume his duties because in the second appeal he has claimed that he should be reinstated with continuity of service. 2.4 Since the claimant was not reporting for duty, the Corporation addressed two letters to the claimant, i.e. letter dated 5.1.2000 and letter dated 24.1.2000. Even after the said communication, the claimant did not report for duty. 2.5 In that view of the matter, the Corporation treated the appointment order engaging the claimant as fresh employee, as cancelled and deleted his name from register. 2.6 At that stage, i.e. when he was informed about above mentioned decision of the Corporation, the claimant raised industrial dispute which came to be referred for adjudication to the learned Labour Court. 2.5 In that view of the matter, the Corporation treated the appointment order engaging the claimant as fresh employee, as cancelled and deleted his name from register. 2.6 At that stage, i.e. when he was informed about above mentioned decision of the Corporation, the claimant raised industrial dispute which came to be referred for adjudication to the learned Labour Court. The dispute was registered as Reference No. 154 of 2001. 2.7 In the said proceeding, the Corporation filed its reply and placed above mentioned details and facts on record in its reply. Thereafter, the learned Labour Court received and recorded evidence and after considering the material available on record, the learned Labour Court dismissed the reference. 3. So far as the factual aspects are concerned, they are not in dispute. The fact that the claimant had stopped reporting for duty and he unauthorizedly remained absent, is not in dispute. 3.1 The period during which he remained absent from duty is also not in dispute. 4. Of course, before the learned Labour Court, the claimant sought to contend that his health was not keeping well and that, therefore, he could not attend the duty. 4.1 However, the said fact is now not relevant because the Appellate Authority considered his appeal against the termination order and directed that the workman should be appointed as fresh employee. 5. The learned Labour Court also took into account the fact that after the Appellate Authority passed the order, the Corporation reengaged the claimant as fresh employee, however, the claimant did not report for duty. 5.1 The learned Labour Court has also recorded that even the said factual aspect is not in dispute. The learned Labour Court has also recorded that so far as the original termination order is concerned, the claimant did not raise any dispute with regard to the legality and propriety of the enquiry, however, he claimed that subsequently, he had reported for duty with medical certificate. 5.2 The learned Labour Court also took into account the fact that it was the claimant who did not report for duty on the ground that he has filed second appeal and has claimed continuity of service and therefore, he would not report for duty as fresh employee. 5.2 The learned Labour Court also took into account the fact that it was the claimant who did not report for duty on the ground that he has filed second appeal and has claimed continuity of service and therefore, he would not report for duty as fresh employee. 5.3 After considering the said facts, the learned Labour Court reached to the conclusion that since it is the claimant who, on his own, decided not to report for duty even after the Corporation passed order appointing him as fresh employee, the dispute of the claimant cannot be entertained. 5.4 The learned Labour Court also recorded that in view of the fact that after the order passed by the Appellate Authority, termination order did not survive and therefore, there was no question of examining the dispute or challenge against the original termination order. 5.5 The learned Labour Court has observed and recorded specific finding that the stand of the workman was unjustified and that he could have reported for duty without prejudice to second appeal and without prejudice to his demand for continuity in service which he had prayed for before the second Appellate Authority, however, the claimant preferred to abstain from duty and therefore, it was the claimant who was at fault. 5.6 With such observations and findings, the learned Labour Court rejected the reference. Feeling aggrieved by the said order, the claimant filed present petition. 6. It is pertinent to note that the petition came to be disposed of vide order dated 11.4.2012. The said order reads thus: "(1) RULE. Mr. H.S. Munshaw, learned advocate waives service of rule for the respondents. (2) With the consent of learned advocates for the parties, the present petition is taken up for hearing. (3) By way of this petition, the petitioner has challenged the judgment and award passed by the Presiding Officer, Labour Court, Surendranagar Ex. 45 dated 08.06.2011 in Reference (LCS) No. 154 of 2001 whereby the Reference Court dismissed on the technical ground that no evidence regarding departmental inquiry is produced and no inquiry was conducted before dismissal order was passed. (4) Heard Mr. Mukesh Rathod, learned advocate for the petitioner and Mr. H.S. Munshaw, learned advocate for the respondent - Corporation. 45 dated 08.06.2011 in Reference (LCS) No. 154 of 2001 whereby the Reference Court dismissed on the technical ground that no evidence regarding departmental inquiry is produced and no inquiry was conducted before dismissal order was passed. (4) Heard Mr. Mukesh Rathod, learned advocate for the petitioner and Mr. H.S. Munshaw, learned advocate for the respondent - Corporation. (5) Having heard learned advocates for the parties and considered the submissions and averments, ends of justice would be met if order of dismissal is set aside by imposing penalty of stoppage of two increments with future effect. The petitioner will not be paid any backwages. The petitioner shall be reinstated on or before 15.05.2012 by granting him all the benefit notionally. Rule made absolute to the aforesaid extent. Direct service is permitted." 6.1 Feeling aggrieved by the said order, the Corporation preferred Letters Patent Appeal No. 837 of 2012. 6.2 Hon'ble Division Bench disposed of the appeal vide judgment dated 4.4.2013. In the said decision dated 4.4.2013, Hon'ble Division Bench observed that: "4. We have heard Mr. Munshaw, learned Counsel for the appellant and Mr. Rathod, learned Counsel for the respondent. 5. It appears from the factual aspects recorded by the learned Single Judge that the learned Single Judge proceeded on the premise that the Reference Court has dismissed the Reference on technical ground that no evidence regarding departmental inquiry was produced or no inquiry was conducted before the dismissal order was passed. If the said aspect is considered with the award passed by the Reference Court, it appears that the Reference Court has recorded that the departmental inquiry was conducted and the appeal was also preferred by the workman. 6. What was required to be decided in the Special Civil Application was whether the termination could be maintained or deletion of the name from the list could be maintained in absence of any further action by the appellant herein respondent in the petition or not? Apart from the above, even if the learned Single Judge found that the award passed by the Reference Court for dismissal was erroneous in exercise of the power under Article 227 of the Constitution of India, the matter could be remanded to the Reference Court for decision afresh, but in our view, straightaway, the order for reinstatement with the penalty of stoppage of two increments with future effect could not have been ordered. We may also find that there are no reasons recorded as to why the relief deserves to be granted. In any case, such conclusion could be reached only if the reasons were recorded by the learned Single Judge on the aspects that the action of the appellant was illegal. We do not find it proper to discuss the said aspect further since the learned Counsel appearing for both the sides have also agreed that if the matter is remanded to the learned Single Judge for fresh consideration, they have no objection for such purpose. Suffice it to state that since the reasons are not recorded for granting of the relief, the matter deserves to be remanded to the learned Single Judge for consideration afresh. 7. In view of the above, the impugned order passed by the learned Single Judge is set aside. Special Civil Application No. 3277 of 2012 shall be heard afresh by the learned Single Judge and after giving opportunity of hearing to both the sides, appropriate orders in accordance with law will be passed. 8. The appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs." 7. It is in pursuance of the said order passed by Hon'ble Division Bench that the petition is now placed in cause list for final hearing before this Court. 8. Having regard to the facts and circumstances of the case and the observations by Hon'ble Apex Court and more particularly the fact that the Corporation had complied the order of the first Appellate Authority and had passed order appointing the claimant as fresh employee, however, it was the claimant who did not report for duty and having regard to the fact that the Court found the said stand of the workman unreasonable and rejected the reference, the award impugned in present petition cannot be faulted. 9. However, in view of peculiar facts and circumstances of the case, the Court considered it appropriate to explore possibility as to whether the similar order can be passed by the Corporation appointing the workman as fresh employee. 10. However, the Court is informed that the claimant has already attained age of superannuation on 31.5.2014. 10.1 Besides this, Mr. Rathod, learned advocate for the workman informed the Court that the workman died on 7.4.2014, i.e. even before the workman attained age of superannuation. 11. 10. However, the Court is informed that the claimant has already attained age of superannuation on 31.5.2014. 10.1 Besides this, Mr. Rathod, learned advocate for the workman informed the Court that the workman died on 7.4.2014, i.e. even before the workman attained age of superannuation. 11. In this view of the matter, question of engaging the workman even as fresh employee does not survive. In view of the peculiar facts of the case, any other order including order awarding lump sum compensation would not be just order. 12. Under the circumstances, the petition cannot be maintained and it deserves to be dismissed because the award passed by the learned Labour Court cannot be faulted and it cannot be said that the award suffers from any infirmity. Consequently, following order is passed: "The petition is not accepted and is hereby rejected. Rule is discharged. No order as to costs. If the Corporation has not paid the dues payable to the workman in accordance with law then the same may be paid at the earliest to his heirs."