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2024 DIGILAW 1535 (GUJ)

CHIEF OFFICER v. RAJESH PANDE

2024-07-09

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : A.S. SUPEHIA, J. 1. Admit. Mr. Hardik Dave, learned advocate waives service of notice of admission on behalf of respondent No. 1. 2. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing. 3. The present appeal under Clause 15 of Letters Patent, 1865, is directed against the judgment and order of learned Single Judge dated 22.10.2018 passed in caption writ petition, wherein the learned Single Judge has rejected the writ petition filed by the appellant assailing the award dated 06.12.2003 passed by the Labour Court at Valsad in Reference (LCV) No. 2001 of 1990. 4. The facts as recorded by the learned Single Judge are not in dispute with regard to the engagement of the respondent as a workman and his termination. It appears that respondent-workman was illegally terminated on 10.06.1989, which culminated into Reference (LCV) No. 2001 of 1990. The respondent-workman was employed as a Octroi Clerk in December, 1983 and he worked with the Nagarpalika for almost 06 to 07 years, till his services came to be terminated on oral instruction on 10.06.1989. From the tenor of the judgment of the learned Single Judge, we find that the Nagarpalika has very sloppily taken the reference proceedings . 5. In the captioned writ petition, the Nagarpalika has challenged the award dated 06.12.2003 as well as the order dated 06.12.2014 passed by the Presiding Officer, Labour Court, Valsad. Thus, the award which was passed on 06.12.2003 is sought to be challenged by filing captioned writ petition in the year 2015. 6. From the award, it appears that the Nagarpalika did cooperate with the proceedings hence, the award directing the Nagarpalika to reinstate the workman with 75% back wages and continuity of service was passed. 7. After consuming almost 06 years, the Nagarpalika filed Misc. Civil Application No. 36 of 2009 under Section 26A of the Industrial Dispute (Gujarat) Rules, 1966. However, it appears that the Labour Court directed the Nagarpalika to pay an amount of Rs.3,000/- cost to the workman, and since the same was not paid, the Labour Court rejected the Misc. Civil Application No. 36 of 2009 vide order dated 06.12.2014. The learned Single Judge has specifically recorded that the Nagarpalika neglected the proceedings and wasted the opportunities given to them. 8. Learned advocate Mr. Civil Application No. 36 of 2009 vide order dated 06.12.2014. The learned Single Judge has specifically recorded that the Nagarpalika neglected the proceedings and wasted the opportunities given to them. 8. Learned advocate Mr. Shah, appearing for the appellant has submitted that the advocate, who initially appeared before the Labour Court, did not remain present in the proceedings and hence, the Nagarpalika did not know about the proceedings. He has submitted that even the workman also did not remain present in the proceedings and hence, it took time in deciding the reference proceeding and hence, it is urged that the direction issued by the Labour Court directing the workman to be reinstated in service may be set aside. 9. Mr. Shah, learned advocate for the appellant, while placing reliance on the judgment of the Division Bench rendered in the case of Dharmsinh Desai University vs. Natubhai Kantibhai Raval, 2023 (3) GLR 1783 has submitted that the workman may be paid suitable compensation instead of reinstatement. It is submitted that the workman had only worked for 421 days and hence, looking to this engagement for such period, he may be paid appropriate compensation. 10. Per contra, Mr. Hardik Dave, learned advocate appearing for the respondent-workman has submitted that the order passed by the Labour Court, as confirmed by the learned Single Judge, may not be disturbed. He has submitted that the workman had reached the age of superannuation on 30.06.2017. 11. Learned advocate for the respondent - workman has invited our attention to the observations made by the learned Single Judge in paragraph No. 41 of the judgment, and has submitted that right from the inception, the appellant-Nagarpalika neglected the proceedings before the Labour Court. It is submitted that despite opportunities offered to the Nagarpalika, they did not cooperate and ultimately, the Labour Court has passed an award. So far as the contention raised by the learned advocate Mr. Shah about the absence of the advocate, he has submitted that in fact in the year 1994, the advocate appearing for the Nagarpalika stopped coming however, the Labour Court had also granted further opportunity in the interest of justice to the Nagarpalika to engage another advocate and to do the needful however, the Nagarpalika did not do anything. Learned advocate Mr. Dave, has submitted that the Application, which was filed by the Nagarpalika being Misc. Learned advocate Mr. Dave, has submitted that the Application, which was filed by the Nagarpalika being Misc. Civil Application No. 36 of 2009 seeking restoration of ex parte award, has been precisely rejected by the Labour Court vide judgment and award dated 06.12.2014 and the same may not be disturbed. It is submitted that the Labour Court imposed a condition of payment of Rs.3,000/- cost to the workman however, the same was also not complied and hence, the Labour Court did not restore the proceedings and allowed the application filed under Rule 26A of the Industrial Dispute (Gujarat) Rules, 1966. Finally, it is submitted that the respondent-workman was orally terminated from service, after it was established that he had worked for almost six years as a Octroi Clerk. 12. We have perused the award, and the judgment and order of the learned Single Judge confirming the same. 13. The aforestated facts are not in dispute. The learned Single Judge has dealt with the issue of termination as under: “9. At this stage, it is also relevant to note that undisputedly (even according to the petitioner nagarpalika) domestic enquiry with reference to the claimant's conduct (mentioned in the written statement) was not conducted by the nagarpalika before terminating service of the claimant. 9.1 On this count, it is pertinent to note that in its written statement, the nagarpalika raised allegation against the petitioner's conduct and his efficiency. 9.2 In its written statement, the nagarpalika alleged that the claimant did not perform his duties efficiently and he was inefficient and negligent in performing his duties and he also used to remain absent from duty. 9.3 The nagarpalika also alleged that on 11.6.1989, when the President of the nagarpalika visited octroi centre, the claimant was not present at the octroi centre. 9.4 It is also pertinent to note that the nagarpalika asserted, rather admitted in the written statement that on account of such conduct of the claimant, his service came to be terminated. 9.5 The nagarpalika admitted that it terminated service of the claimant. 9.6 From the said submission and admission by the nagarpalika in its written statement, it becomes clear that the claimant's service came to be terminated on account of alleged conduct (rather alleged misconduct) by the claimant. 9.5 The nagarpalika admitted that it terminated service of the claimant. 9.6 From the said submission and admission by the nagarpalika in its written statement, it becomes clear that the claimant's service came to be terminated on account of alleged conduct (rather alleged misconduct) by the claimant. 9.7 When the nagarpalika terminated claimant's service for said reasons, then such action could not have been taken and claimant's service could not have terminated without conducting enquiry and without following principles of natural justice and without granting opportunity of hearing and defence should have been granted (by issuing notice and conducting enquiry). 9.8 Undisputedly, the said procedure was not followed. 9.9 Such action (terminating service, for such reasons, without granting opportunity of service) cannot be sustained. 9.10 The said termination was, undisputedly, stigmatic and penal and that, therefore, it could not have been effected in breach of principles of natural justice. 10. Not only this, the nagarpalika also did not follow the procedure prescribed under Section 25F of the Industrial Disputes Act. 10.1 This aspect is also undisputed. It is not the case even of the nagarpalika that it had followed the procedure under Section 25F. Undisputedly, any procedure was not followed when the nagarpalika terminated service of the claimant under oral instructions.” 14. Thus, the appellant has admitted that the service of the respondent was terminated on misconduct, without giving any opportunity of hearing. The Labour Court has held that the workman had also worked for 240 days before his termination. Hence, we do not find any infirmity or illegality in the observations made by the learned Single Judge confirming the findings of the Labour court. With regard to the issue of back wages is concerned, the learned Single Judge has observed thus: 58. Now, so far as the direction to pay 75% backwages is concerned, the petitioner has failed to make out any ground to disturb the said direction. 59. When it is established that the service of the claimant came to be terminated illegally and arbitrarily and in violation of principles of natural justice as well as in breach of statutory provisions, the direction passed by the learned Labour Court and discretion exercised by the learned Labour Court cannot be disturbed [See: Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.), (2013) 10 SCC 324 ]. 60. 60. Besides this, in view of the fact that in present case, the nagarpalika is guilty of neglecting the proceeding and not attending proceeding before the learned Labour Court despite opportunity granted by the learned Labour Court, there is no justification to accept the petitioner's request and to disturb legal and reasonable decision of the learned Labour Court. 61. Any ground to disturb the direction to pay 75% backwages is not made out. 62. The learned Labour Court has taken into account relevant facts and circumstances including the fact that the claimant also caused some delay in leading evidence. Therefore, it cannot be said that the learned Labour Court has exercised discretion and passed direction mere ipse dixit. Therefore, the petitioner's objection against the said direction is also rejected. 63. It is clarified that it would be open for the petitioner nagarpalika to take appropriate action in accordance with law to recover financial burden from the erring officer who, at the relevant time, neglected the proceedings and did not attend the proceedings before the learned Labour Court. 15. The contents of the award reveals that the Labour Court had directed the Nagarpalika to produce the muster rolls from 1983 to 1991, during which workman was working as a Clerk in the Octroi Department however, the appellant only produced selective muster rolls. Thus, the Labour Court has recorded that deliberately such information is suppressed for the years, for which the respondent-workman has worked. Though, it is contended before us that the workman has only worked for 421 days, no evidence is led before the Labour Court in this regard. 16. With regard to the conduct of the Nagarplika in treating the reference proceedings, the learned Single Judge has recorded thus: “21. So far as the said submissions are concerned, it is necessary to keep in focus that the claimant's service came to be terminated in June 1989. 21.1 He immediately raised dispute and the appropriate government referred the dispute for adjudication in October 1989. 21.2 The award came to be passed in 2003 i.e. after 14 years. 21.3 It is pertinent to note that even thereafter i.e. from 2003 to 2009, the nagarpalika neglected the award and did not take any steps to get the proceedings restored. 21.4 The miscellaneous application came to be filed in June 2009. 21.2 The award came to be passed in 2003 i.e. after 14 years. 21.3 It is pertinent to note that even thereafter i.e. from 2003 to 2009, the nagarpalika neglected the award and did not take any steps to get the proceedings restored. 21.4 The miscellaneous application came to be filed in June 2009. 21.5 The nagarpalika prolonged the said proceedings of miscellaneous application for almost 5 years and the nagarpalika's application came to be rejected in December 2014. 21.6 Thereafter almost 4 years have passed. 21.7 By now, almost 28 years have passed after the nagarpalika terminated the service of the claimant. 22. On this count it is also necessary to take note of the observations by the learned Labour Court in the award. 22.1 The learned Labour Court has observed that (a) the nagarpalika failed to complete the crossexamination of the workman and did not examine any witness on its behalf, despite opportunity granted by the Court; (b) the nagarpalika did not lead / did not place on record any evidence; (c) after the nagarpalika's learned advocate retired from the proceedings, the nagarpalika sought adjournment/time to make alternative arrangement; (d) the said request was accepted and the adjournment/time was granted; (e) despite the adjournment and opportunity granted by the Court, the nagarpalika did not make any alternative arrangement and no one attended the proceedings. 23. The said observations are categorically recorded by the learned Labour Court in the award. 24. From the said observations, it becomes clear that at the stage when the parties were required to place on record evidence, the petitioner nagarpalika failed to do so. 25. Even after the learned Labour Court passed the order directing the nagarpalika to place on record attendance register / wage register, the nagarpalika did not comply the direction. 26. It also appears from the proceedings that learned advocate representing the nagarpalika had categorically informed the nagarpalika, in advance, that he would retire from the proceedings. It appears that after due service of intimation to the nagarpalika, learned advocate retired from the proceedings. The nagarpalika had advance intimation and had also knowledge about the fact that learned advocate has retired from the proceeding. The nagarpalika was also aware about the pendency of the proceedings and after the learned advocate retired from the proceedings the nagarpalika had appeared before the learned Labour Court and had sought time to make alternative arrangement. The nagarpalika had advance intimation and had also knowledge about the fact that learned advocate has retired from the proceeding. The nagarpalika was also aware about the pendency of the proceedings and after the learned advocate retired from the proceedings the nagarpalika had appeared before the learned Labour Court and had sought time to make alternative arrangement. The Court granted the request and opportunity. Despite the opportunity the nagarpalika did not make any arrangement and neglected the proceedings and allowed the case to proceed further in its absence. In that view of the matter, the learned Labour Court, stage by stage, closed the proceedings inasmuch as initially the right of cross-examination came to be closed, then the stage of evidence of nagarpalika came to be closed and ultimately since no one appeared at the stage of oral submissions, the learned Labour Court heard the submissions on behalf of the workman and placed the matter for orders. 27. Under the circumstances, the learned Labour Court's decision to proceed in the case and decide the reference cannot be faulted. It is apparent that the nagarpalika simply ignored the proceedings before the learned Labour Court. 28. On the other hand, it comes out from the award that the learned Labour Court has taken into account all facts as well as material available on record and the evidence available on record.” 17. The Labour Court has recorded that the reference proceedings were adjourned on various occasions and opportunity was given to the officers of the Nagarpalika and ultimately, on 02.03.2000 and 12.02.2000, when such proceedings were kept for cross-examination on behalf of the Nagarpalika, no one remained present and accordingly, the right to cross-examination was closed by the Labour Court. Vide Exh.100, the Labour Court closed the further opportunity of leading oral evidence of the Nagarpalika and thereafter, the Nagarpalika requested to give further opportunity to lead oral evidence on the condition of paying cost to the respondent-workman. Thereafter, the Nagarpalika did not do anything and no evidence was led. It is also observed that the Nagarpalika did not implement the order passed under Exh.101 and after the advocate for the Nagarpalika retired, no one remained present. It is also recorded that the Nagarpalika appeared before the Labour Court to engage a new advocate and accordingly, the adjournment was given and request was accepted in the interest of justice. It is also observed that the Nagarpalika did not implement the order passed under Exh.101 and after the advocate for the Nagarpalika retired, no one remained present. It is also recorded that the Nagarpalika appeared before the Labour Court to engage a new advocate and accordingly, the adjournment was given and request was accepted in the interest of justice. However, thereafter also no one appeared on behalf of the Nagarpalika and and the reference proceedings were not contested further. Thus, the Labour Court tried its best efforts to see that someone is represented by the Nagarpalika or the Nagarpalika represents their case before it. However, they remained negligent and ignored the proceedings of the Labour Court and ultimately, the Labour Court passed the award dated 06.12.2003 directing the Nagarpalika to reinstate the workman with 75% of back wages. It is observed that the respondent-workman was orally terminated without following any procedure. 18. After the award dated 06.12.2003, it is very glaring to note that the Nagarpalika woke from slumber in the year 2009 and filed an application under provisions of Rule 26A of the Industrial Dispute (Gujarat) Rules, 1966 praying for setting aside the ex parte award. By the order dated 06.12.2014, the Labour Court rejected such application. The Labour Court, in paragraph No. 5 of the order dated 06.12.2014 has specifically recorded that the reference proceedings were restored on the condition that the Nagarpalika shall pay a cost of Rs.3,000/- for cross-examination of the workman however, very shockingly and blatantly, the Nagarpalika also did not pay any cost of Rs.3,000/- to the workman. After recording such facts, including the fact of absence of the advocate, the Presiding Officer, Labour Court, Valsad, rejected the application. 19. After having failed in the restoration application, the Nagarpalika has assailed both the award dated 06.12.2003 and 06.12.2014 and the impugned order passed by the Presiding Officer rejecting the Misc. Civil Application No. 36 of 2009 by the captioned writ petition. 20. Thus, the Nagarpalika has treated the proceedings before the Labour Court as if it was an exercise in futility. The Nagarpalika disrespected and totally neglected the proceeding. Under the circumstances and light of the established fact from the pleadings, we do not find any infirmity or illegality in the judgment and order passed by the learned Single Judge rejecting the writ petition. 21. The Nagarpalika disrespected and totally neglected the proceeding. Under the circumstances and light of the established fact from the pleadings, we do not find any infirmity or illegality in the judgment and order passed by the learned Single Judge rejecting the writ petition. 21. The learned Single Judge finally has issued the directions that it would be open for the Nagarpalika to take appropriate action in accordance with law to recover the financial burden from the erring officer, who at the relevant point of time, neglected the proceedings and did not attend the proceedings before the Labour Court. Thus, whatever loss is caused by the Nagarpalika, can be compensated by taking appropriate action of recovery in accordance with law with erring officers. Since, the workman has already reached the age of superannuation on 30.06.2017, his reinstatement to the original post would not be feasible. On an examination of overall facts, we are not inclined to disturb the award, after a period of 21 years, and alter the award from reinstatement to compensation. The Nagarpalika has invited the award by its indolent conduct. 22. The Nagarpalika is directed to treat the workman as retired from 30.06.2017 on reaching the age of superannuation. The Nagarpalika is further directed to pay all the consequential benefits arising from the award dated 06.12.2003 and also retirement benefits within a period of two months from the date of receipt of the order of this Court. 23. The Letters Patent Appeal fails and the same is rejected. 24. Consequentially, the Civil Application (For Stay) also stands disposed of.