Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Manager, Ahmedabad Municipal ... vs Secretary, Amts Karmachari Sangh on 13 December, 2018

Author: C.L. Soni

Bench: C.L. Soni

          C/SCA/16665/2017                              ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 16665 of 2017
==========================================================
    MANAGER, AHMEDABAD MUNICIPAL TRANSPORT SERVICES
                            Versus
             SECRETARY, AMTS KARMACHARI SANGH
==========================================================
Appearance:
MR DEEP D VYAS(3869) for the PETITIONER(s) No. 1
MR YOGEN N PANDYA(5766) for the RESPONDENT(s) No. 1
==========================================================
 CORAM: HONOURABLE MR.JUSTICE C.L. SONI

                             Date : 13/12/2018

                              ORAL ORDER

1. The petition is filed under Articles 226 and 227 of the Constitution challenging the award/ order dated 31.3.2017 passed by the Industrial Tribunal (Tribunal) in Reference (IT) No.167 of 2007 whereby the Tribunal allowed the reference and ordered that since the punishment imposed upon the respondent No.1 vide order dated 29.5.2006 is set aside, his pay should be fixed and he should be given benefit of difference of pay accordingly and that he should be paid retirement benefits and other benefits after fixation of his pay afresh.

2. As could be noticed from the terms of the reference and the facts stated in the impugned order, the respondent No.1 was issued charge-sheet for the charge of unauthorized absence for the period from 21.5.2005 to 6.7.2005. In connection with such charge-sheet, inquiry was held and on conclusion of the inquiry, the respondent No.1 was imposed punishment of stoppage of two increments with permanent effect by order dated 29.5.2006. It is in connection with such holding of the departmental inquiry and the punishment imposed, the dispute was referred for adjudication to the Tribunal. The terms of the reference include whether the charge-sheet is illegal and the order of punishment is in breach of the principles of Page 1 of 4 C/SCA/16665/2017 ORDER natural justice and whether on declaring the order of punishment as illegal, the respondent No.1- workman should be compensated loss suffered by him on account of stoppage of two increments.

3. The Tribunal has found that during the period from 21.5.2005 to 6.7.2005, the respondent No.1 had made three applications to the petitioner for grant of leave, but the petitioner did not take any decision on any of the applications and he was charged for remaining absent unauthorizedly. The Tribunal recorded that when the respondent No.1 had made three applications for grant of leave, the petitioner was required to take decision either to grant or not to grant the applications but to treat him absent on duty unauthorizedly was not in consonance with the Standing Order and that the respondent No.1 could not be treated to have committed any misconduct of remaining absence unauthorizedly.

4. Learned advocate Mr. Vyas appearing for the petitioner submitted that indisputably, the respondent No.1 remained absent from duty for the period from 21.5.2005 to 6.7.2005 without leave. He submitted that once the charge of remaining absent unauthorizedly from duty is proved in the departmental inquiry held against the respondent No.1, it was not open to the Tribunal to hold that the charge levelled against the respondent No.1 was not proper and illegal and that the respondent No.1 could not be said to have committed any misconduct. Mr. Vyas submitted that the respondent No.1 sent applications for grant of leave after enjoying the period of absence and therefore, it could not be said that the charge levelled against the respondent No.1 was either not proper or illegal. Mr. Vyas submitted that in any case, the Tribunal ought not to have set at naught the punishment imposed to the respondent No.1 when the inquiry against the respondent No.1 was validly held.

5. Learned advocate Mr. Pandya appearing for respondent No.1 on caveat submitted that it is not a case where the respondent No.1 Page 2 of 4 C/SCA/16665/2017 ORDER remained absent from duty without making any application for grant of leave. He submitted that indisputably, the respondent No.1 made three different applications for grant of earned leave but on none of the applications made by the respondent No.1, the petitioner took decision either to grant or not to grant leave to the respondent No.1 and for such inaction of the petitioner, the respondent No.1 was sought to be penalized. Mr. Pandya submitted that when the respondent No.1 had made three different applications for grant of earned leave, he could not have been charge-sheeted for unauthorized absent and therefore, the Tribunal committed no error in holding that the charge levelled against the respondent No.1 was not proper and illegal. He submitted that when the respondent No.1 had not committed any misconduct of remaining absent unauthorizedly, issuance of the charge-sheet to the respondent No.1 and holding inquiry against him was invalid from inception and therefore, the Tribunal rightly set aside the order of punishment imposed to the respondent No.1 and rightly granted the consequential benefits to the respondent No.1.

6. The Court, having heard learned advocates, finds that as recorded by the Tribunal in the impugned order, during the period for which the respondent No.1 was charge-sheeted for being absent unauthorizedly, the respondent No.1 made three different applications for grant of earned leave to him. The copies of such three applications are placed on record, which are dated 2.6.2005, 17.6.2005 and 4.7.2005 respectively. In all the applications, the respondent No.1 has given reasons for grant of earned leave to him. As further recorded by the Tribunal, the petitioner did not take any decision on such applications either to grant or not to grant leave to the respondent No.1. The Court finds that when the petitioner was required to take decision on above such applications of the respondent No.1, no decision was taken and the respondent No.1 was taken to have remained absent from duty unauthorizedly.

Though non-taking of decision on the applications may not amount to grant of the applications but, as rightly observed by the Tribunal, when the respondent No.1 had made three different applications for grant of earned leave and when no decision was taken by the petitioner on such applications, his absence from duty for the above-said period could not be treated as misconduct. If the applications made by the respondent No.1 were not to be allowed, the period during which the respondent No.1 remained absent from duty could have been considered as Leave Without Pay, if so permissible under the Rules. But, when the respondent No.1 made applications for grant of earned leave, the petitioner was required to take decision either to grant or not to grant earned leave to the respondent No.1 and for not taking decision on such applications of the respondent No.1, the respondent No.1 could not be levelled with the charge of remaining absent unauthorizedly. In such view of the matter, the Court finds that the Tribunal has not committed any error in holding that the charge levelled against the respondent No.1 was not proper and illegal and that the respondent No.1 could not be taken to have committed any misconduct and in setting at naught, the punishment of stoppage of two increments with permanent effect and in ordering the petitioner to release consequential benefits to the respondent No.1. Therefore, no interference is called for in the impugned award/ order by this Court in exercise of the powers under Articles 226 and 227 of the Constitution. The petition is therefore rejected.

(C.L. SONI, J) OMKAR Page 4 of 4