Gujarat High Court
Ahmedabad Municipal Corporation vs Vinodbhai Bhagubhai Chauhan on 20 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/10494/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10494 of 2015
AHMEDABAD MUNICIPAL CORPORATION
Versus
VINODBHAI BHAGUBHAI CHAUHAN
Appearance:
MR HAMESH C NAIDU(5335) for the PETITIONER(s) No. 1
MR MUKESH H RATHOD(2432) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 20/03/2018
ORAL ORDER
Heard Mr. Naidu, learned advocate for the petitioner and Mr. Rathod, learned advocate for the respondent.
2. In present petition, the petitioner - Ahmedabad Municipal Corporation has prayed, inter alia, that:-
"7(A) A writ of certiorari and/or a writ in the nature of certiorari and/or any other appropriate writ, order or direction be issued to quash and set aside the impugned award dated 27th August, 2014 passed by the Labour Court, Ahmedabad in Reference (LCA) No.684 of 2012 and further be pleased to reject the Reference of respondent No.1;"
2.1 The petitioner corporation is aggrieved by award dated 27.8.2014 passed by learned Labour Court at Ahmedabad in Reference (LCA) No.684 of 2012 whereby the learned Labour Court set aside the order passed by the corporation under which the corporation terminated service of the claimant (i.e. present respondent) and Page 1 C/SCA/10494/2015 ORDER substituted the penalty of termination from service by penalty of stoppage of 3 increments with permanent effect.
3. So far as factual background is concerned, it has emerged from the record that feeling aggrieved by order dated 18.9.2009, whereby the corporation terminated his service, the claimant (respondent herein) raised industrial dispute, which was referred for adjudication to learned Labour Court at Ahmedabad. The learned Labour Court registered the dispute as Reference (LCA) No.684 of 2012.
3.1 In his statement of claim, the claimant alleged that the opponent corporation illegally terminated his service. He claimed that he was serving with the corporation since last 20 years. He further alleged that due to ill-health, he was not able to report for duty from 16.10.2007 to 8.4.2008, however, without taking into account the reasons for his absence, the corporation terminated his service on the ground of absentism. The claimant alleged that before terminating his service, the corporation did not grant him opportunity of hearing and the corporation committed breach of statutory provisions as well as principles of natural justice. With such allegations, the claimant Page 2 C/SCA/10494/2015 ORDER demanded that he should be reinstated in service with all benefits.
3.2 The corporation opposed the reference as well as demand by the claimant. The corporation emphasized, in its reply, that the claimant was in habit of remaining absent without leave and prior permission. The corporation claimed that the habit of absentism of the claimant caused not only administrative difficulties for the corporation, but also resulted into financial loss because the corporation had to engage additional hands on account of claimant's unauthorised absence of prolonged duration. The corporation placed on record the details about the past instances when the claimant remained continuously absent without leave and permission. The corporation claimed that in respect of said misconduct of unauthorised absence, the claimant was visited with penalty of stoppage of increments, however, despite such actions, the claimant did not improve his record and conduct. The corporation further claimed that for such unauthorised absence, the corporation had issued charge sheet and called for claimant's explanation. Thereafter, legal and fair domestic inquiry was conducted. The corporation claimed that the Inquiry Officer held that the charge and allegations of unauthorised absence for prolonged Page 3 C/SCA/10494/2015 ORDER period are proved. The corporation claimed that in view of such finding by Inquiry Officer, the corporation considered it necessary and appropriate to terminate service of the claimant and that therefore, order dated 18.9.2009 came to be passed whereby the service of the claimant came to be terminated. According to the corporation, the disciplinary action is justified and the said action is taken in accordance with applicable rules and that therefore, the claimant's demand deserve to be rejected.
3.3 Upon conclusion of the proceedings, the learned Labour Court passed impugned award.
3.4 Learned advocate for the petitioner reiterated the facts and details mentioned in the reply (written statement) including the details about misconduct as well as claimant's service record. He also submitted that the legality of inquiry was admitted and the misconduct was proved and that therefore, the learned Labour Court should not have interfered with the quantum of penalty determined by the corporation. He submitted that the learned Labour Court committed error in exercising powers under Section 11-A of the ID Act.
4. On the other hand, Mr. Rathod, learned Page 4 C/SCA/10494/2015 ORDER advocate for the respondent claimant submitted that the claimant has rendered service with the corporation for almost 22 years. He submitted that during fast few years, the respondent was not keeping good health and that therefore, he was unable to report for duty. Mr. Rathod, learned advocate for the respondent claimant submitted that before the employer as well as before the learned Labour Court, the claimant had voluntarily declared that he does not claim backwages and the Court may decide and impose any reasonable penalty other than termination of his service and that it was in light of such submission and declaration by the claimant that the learned Labour Court passed impugned direction. Mr. Rathod, learned advocate for the respondent claimant further submitted that even after the rendition of the award, the workman informed the employer and he maintains / submits before the Court also that if any higher penalty other than dismissal or discharge from service is to be imposed, then, the corporation may do so, however, he may be continued in service. The learned advocate for the petitioner, in support of his case, relied on the decision by this Court [Coram: Hon'ble Mr. Justice S.K.Keshotea (as His Lordship then was)] in the case between Maheshkumar Narottambhai Kantharia v. Administrative Officer, Nagar Prathmik Shikshan Page 5 C/SCA/10494/2015 ORDER Samiti, Surat & Anr. dated 22.3.2001 rendered in Special Civil Application No.2788 of 1992.
5. From the award, it comes out that the claimant did not dispute the legality and propriety of domestic inquiry. On the contrary, the claimant filed a pursis and declared that he does not challenge the legality and propriety of the inquiry. Thus, it was established before learned Labour Court that the corporation had committed legal and fair inquiry.
6. After considering the material available on record and after examining the claimant's objection against the findings recorded by learned Labour Court, the learned Labour Court reached to the conclusion that the findings recorded by the Inquiry Officer are based on evidence which was available on record and that the findings recorded by Inquiry Officer are legal, just and fair and cannot be termed as incorrect or perverse.
6.1 Meaning thereby, the learned Labour Court accepted the findings by Inquiry Officer and the learned Labour Court also held that the charge and allegations about unauthorized prolonged absence is established.
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7. Under the circumstances, three important aspects were duly established before the learned Labour Court viz. (a) legal and fair inquiry was conducted; (b) the findings recorded by Inquiry Officer are correct, legal and fair and not incorrect or perverse; and (c) the charge and allegation of prolonged unauthorised absence are proved and accepted by learned Labour Court as well.
8. Besides this, the corporation also established before the learned Labour Court that the past record of the claimant is also tainted, inasmuch as the claimant had remained continuously absent without leave and permission for 11 months in one stretch and then continuously for 15 months in second stretch and in present instance for 6 months in third stretch i.e. 2007-2008.
9. In this view of the matter, at this stage, profitable reference can be had to the observation in case of Maheshkumar Narottambhai Kantharia (supra) wherein, the Court observed, inter alia, that:-
"13. There is another conduct of the petitioner on which this petition deserves to be dismissed. Leaving apart the question what weightage has to be given to two medical certificates produced by the petitioner by this Court or to what extent reliance could be placed on these two medical certificates, it is not in dispute that the petitioner has not produced any medical certificate for his ailment for the period from 25-8-1990 to 4-9-1990. It is also not the case Page 7 C/SCA/10494/2015 ORDER of the petitioner that for this period he has applied for leave. It is an admitted position that for this period aforesaid, the petitioner has not applied for leave nor he has produced any document before this Court for his illness and lastly he has not shown any cause for which he was prevented from attending his duties from 25-8-1990. For this absence also, which is clearly an unauthorised absence and a serious and grave misconduct of the petitioner, the services of the petitioner could have been brought to an end and for this also, the matter is squarely covered by the decision of the Apex Court in the case of Dharmamthmakara Raibahadur Arcot Ramaswamy Mudaliar Education Institution v. Educational Appellate Tribunal (supra).
14. It is difficult to accept that the petitioner was not given reasonable opportunity in the matter before terminating his services. From the document annexure 'C' of the compilation of the Special Civil Application, I find a notice has been given to the petitioner to show-cause. Reply to this notice has been given by the petitioner and herein he has assured that he will report for duty on 5-11-1990, but he did not report for duty on 5-11-1990, the respondents were perfectly legal and justified in the matter to dispense with his services. There was no necessity or obligation on their part to show any further indulgence or mercy to him. Earlier it has been shown for the period during which he remained absent i.e., from 28-2-1990 to 6-4-1990. From the reply to the Special Civil Application, I find that on that occasion, the services of the petitioner could have been terminated. The petitioner has no explanation whatsoever for this absence. Whatever explanation is furnished firstly of sickness and secondly death of husband of his sister arc hardly of any defence, but in fact in the context for illness or sickness, no medical certificate has been produced and so far as the death of the husband of the sister is concerned, even if it is correct, he was not required to remain absent for such a long period. The concession has been extended and the petitioner also assured to be punctual in future. He was taken back in services, but he could not stand to his commitment and for such an indisciplined person what it was minimum to be ordered, has been ordered in this case by the respondents and to this action of the respondents, no exception can be made.
15. It is a clear case of unauthorised absence of the petitioner from duty. He has no cause much less a sufficient cause for this absence. The medical certificates which are produced by the petitioner are of little help to him. These two medical certificates are not produced by the petitioner before the respondents. They are produced before this Court in these proceedings under Art. 226 of the Constitution. This Court is not sitting as an appellate Court over the decision of the Disciplinary Authority. This Court sitting under Art. 226 of the Constitution cannot appreciate the evidence. Judicial review in such matter is only relating to decision-making process of the authority. As these certificates were not produced before the respondents, the same cannot be allowed to be produced in a petition under Art. 226 of the Constitution. It is not a case where any Page 8 C/SCA/10494/2015 ORDER evidence has been produced and the same has not been considered. At least, one certificate as per its date was in existence or would have been existence but it was not produced. So far as the second certificate is concerned, it is of date after the date of order of termination of the services of the petitioner. I find sufficient merits in the contention of the learned Counsel for the respondents that as these certificates were not produced before the respondents, the same may not be considered by this Court sitting under Art. 226 of the Constitution. Otherwise also, if we examine these certificates in the light of the facts of this case, both are nothing but only procured document for the sake of defence. This document, annexure 'A' appears to have been obtained after the order dated 12-11-1990 has been passed by the respondents and it appears to be taken in back date. This certificate nowhere bears any number of the register of 15-6-1990 of the patient register to be maintained by the Doctor. It is easy to give such certificate in ante date. It is very dangerous to rely on such certificates in all the cases. Unscrupulous litigants/employees take such certificates to have benefits thereof. Merely because Doctor gives certificate, it is not the law that it has to be accepted to be true and correct. There are three reasons for which this certificate cannot be accepted. Firstly, the petitioner has not submitted any leave application for the period from 15-6-1990. Secondly, though this certificate was dated 24-8-1990 and it would have been in possession of the petitioner if it is correct before the receipt of notice of respondents dated 8-10-1990 and reply given to this notice, if this certificate would have been in existence at that time, this would have been enclosed to the reply to that notice, but it has not been done. The petitioner on the record of this petition has not produced copy of the reply which is sent to the notice of the respondents annexure 'C'. Non-production of this document by the petitioner creates suspicion in the mind of the Court. Otherwise also, an adverse inference can be drawn for non-production of this document that in case it would have been produced it would have gone against the petitioner. From the petitioner's own document annexure 'F' dated 16-11-1990 in which he has also not mentioned that he was ill during the period from 15-6-1990 to 24-8-1990 he was under the treatment of Dr. Fatehsinh M. Rathod and fitness certificate has been given to him to resume his duty on 24- 8-1990. Next application is of date 5-11-1990 in which also, this has not been mentioned. Thirdly, the petitioner remained ill for more than two months as per this certificate and as per his say, then certificate of Doctor would have been there prescribing medicine to him as he is running a private clinic has not been produced on record. From his clinic, the record can be produce if it is there. In case where the Doctor prescribes the medicine to be purchased from outside, then he can produce the cash memos. Dr. Fatehsinh Rathod was present in the Court and he stated that record is not available. This is another fact which created doubt in the mind of the Court. There is all possibility that this certificate is got prepared by the petitioner ante date for his cause for absence.
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16. So far as the second certificate is concerned, it is again for illness for the period of near about nine months. The petitioner was reported to be fit to join his duties on 24-8-1990 and if from the very next date he would not have been in a position to attend the duties, he could have taken treatment but that has not been done. Now from 5-9-1990 he was treated by Medical Officer, Rander Health Centre as an outdoor patient. There is an apparent fact which emerges from this certificate which makes it clear that the petitioner is an absolute liar. He was not ill and he manufactured this document. This certificate certifies that he was under treatment for Falciparum malaria as an outdoor patient of this hospital from 5-9-1990 and outdoor registration No. 1271 of 25-8-1990. This outdoor registration has been made on 25-8-1990 as he wanted to show his absence due to a sufficient cause. This certificate is absolutely a manufacture document. This is a clear case of using of some blank space in the register. The petitioner has not produced the prescription when he was an outdoor patient from 25-8-1990. This prescription has to be prepared and it has to be produced. It was not produced. This date 25-8-1990 if we go by the document is a deliberate attempt. There are two contrary statements in this certificate. Outdoor registration No, 1271 of 25-8-1990 and he was under
the treatment of hospital from 5-9-1990. These two do not tally and makes this certificate to be nothing but only a manufacture document. The petitioner has not produced any cash memo for the purchase of medicine. Naturally, if he was outdoor patient, doctor would have prescribed medicine and in case he really would have been ill and certificate would have been genuine, then medicines would have been purchased. Hence, this certificate also cannot be relied upon. Though at one point of time, I thought of to call the record of Surat Municipal Corporation re-issue certificate to the petitioner as it prima facie appears to be a manufacture document but taking into consideration the fact that the petitioner is a Class-IV employee his services are terminated. I do not consider it to be appropriate to proceed in that direction. There is also another possibility that doctor may not be available or the record may not be available. However, this petitioner, otherwise also, in the facts of this case is not fit to be retained in services. He is most indisciplined person and in a habit of telling lie and manufacturing documents."
9.1 In light of the nature of misconduct, the facts of present case, the findings recorded by the Tribunal viz. (1) that legal and fair inquiry was conducted before imposing penalty; (2) the findings by inquiry officer are legal, correct and just and not perverse; (3) misconduct and charge are proved; (4) no findings or conclusion Page 10 C/SCA/10494/2015 ORDER by the Tribunal that penalty is in nature of victimization or that employer acted with malafides and/or victimization or that the penalty is shockingly disproportionate. In this view of the matter, there was little scope for the learned Labour Court to interfere with the quantum of penalty determined by the employer. When it is established before the learned Labour Court that a fair and legal inquiry is conducted before imposing penalty and when it is also established that the findings by the Inquiry Officer are correct, legal and fair and not perverse and when the learned Labour Court does not record conclusion that the claimant is victimized and/or the quantum of penalty is in nature of victimization or that the quantum of penalty is shockingly disproportionate or the quantum of penalty is such that any prudent employer would not impose the learned Labour Court would not be justified in interfering with the quantum of penalty determined by the employer.
In such cases, the decision with regard to quantum of penalty is squarely falls within purview of the employer's discretion and it would not be open for the learned Labour Court to weigh the quantum of penalty in golden scale and/or by Court's standard.
Since, despite such facts and the position Page 11 C/SCA/10494/2015 ORDER which obtains in present case, the Tribunal interfered with the penalty and the Tribunal substituted the penalty, it is necessary to examine whether the said course of action by the Tribunal and Tribunal's decision are justified and correct or not. The learned Tribunal set aside employer's order of penalty viz. termination of respondent's service. As mentioned above, in present case, there was neither any scope nor justification to set aside penalty order passed by competent authority. While quashing the penalty order passed by competent authority learned Tribunal lost sight of or overlooked aforesaid well-recognised tenets and restrictions and arbitrarily quashed disciplinary authority's order.
At this stage, Mr. Rathod, reiterated his above noted statement and declaration.
10. In this background and more particularly in light of the submission and the statement/waiver by learned advocate for workman, the Court with a view to considering other appropriate penalty, inquired from learned advocate for the petitioner about the balance service of the respondent claimant. Having regard to the service record of the petitioner, which establishes that the respondent claimant is in habit of remaining absent for long duration and that too without Page 12 C/SCA/10494/2015 ORDER prior leave and permission, the Court considered it necessary to take into account that if the respondent continues in service, then, he may again resort to same habit. Therefore, the Court inquired from the petitioner corporation about the length of service which remains in balance.
10.1 Learned advocate for the petitioner corporation clarified that the date of birth of the respondent claimant is 25.4.1958 and accordingly, he would retire on superannuation on and from 30.4.2018.
10.2 Meaning thereby, only one month's service is left in balance.
10.3 When the said aspect is taken into account coupled with the fact that before the corporation terminated respondent's service, he had served with the corporation for almost 22 years, this Court, though of clear view that disciplinary authority's order should not have been disturbed, at this stage, is not inclined to interfere with the discretion exercised by learned Labour Court. However, in view of the facts of the case, this Court is of considered view that the penalty determined and substituted by learned Labour Court is, certainly, inadequate.
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11. In light of foregoing discussion and for the reasons mentioned above, direction to reinstate the claim is not disturbed. However, the award with regard to penalty is modified.
11.1 Having regard to the fact that against the order dated 18.9.2009 whereby the claimant's service came to be terminated, the claimant raised dispute in March/April 2012, it is declared that the claimant will not be entitled for wages from the date of termination until 30.8.2014.
11.2 The quantum of penalty determined by the learned Labour Court i.e. stoppage of 3 increments with permanent effect is modified and enhanced to stoppage of 7 increments with permanent effect.
With aforesaid modification in the impugned award, the petition is partly allowed. Orders accordingly.
(K.M.THAKER, J) KAUSHIK D. CHAUHAN Page 14