Gujarat High Court
Transport Manager vs Bhupendrasinh Himmatsinh Waghela & Ors on 28 March, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/12361/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12361 of 2013
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TRANSPORT MANAGER ....Petitioner
Versus
BHUPENDRASINH HIMMATSINH WAGHELA & Ors.....Respondents
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Appearance:
MR DEEP D VYAS, ADVOCATE for the Petitioner- Employer
MR YOGEN N PANDYA, ADVOCATE for the Respondent No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent No. 2
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 28/03/2014
ORAL ORDER
1. Amendment granted. Heard Mr. Deep D.Vyas, learned advocate for the petitioner- Employer, and Mr.Yogen N. Pandya learned advocate for the contesting respondent No.1-Workman.
2. Challenge in this petition is made to the award dated 16.03.2013, passed by the Industrial Tribunal, Ahmedabad in Reference (I.T.) No.15 of 2008, whereby the Reference in question is allowed. The present respondent No.1- Employee is held to be entitled to the pension and other retirement benefits, and since he has died, his legal heirs are to receive the said benefits.
3. Mr.Vyas learned advocate for the petitioner- Management has contended that, firstly the concerned Page 1 of 7 C/SCA/12361/2013 ORDER employee had not completed the pensionable service of 20 years, secondly he had tendered resignation, and that even the Appellate Authority had not passed any order of reinstatement, and that he had availed number of years of leave, which would ultimately disentitle him from claiming pension, since he had not completed the pensionable service of 20 years. It is submitted that the impugned award be quashed and set aside.
4. On the other hand, Mr.Pandya learned advocate for the respondent has pointed out from the record that, the concerned employee had joined the service in the year 1981, and the date on which the Appellate Authority had decided to offer the voluntary retirement, which the employee had accepted, the concerned employee had already completed 25 years service, which was much more than minimum requirement of 20 years. It is contended that, ultimately Industrial Tribunal has accepted this claim of the workman, and no inference be made by this Court in this petition.
5. Having heard leaned advocates for the respective parties and having gone through the material on record, the picture which has emerged is that, the respondent Employee had joined the service as a Driver on 14.08.1981, his provident fund contribution had started from May, 1982, and he was terminated vide order dated 12.08.2004. In departmental appeal, the Appellate Authority modified the punishment of termination to reduction of pay. The said decision of the Appellate Authority dated 10.08.2005 got approved by the Page 2 of 7 C/SCA/12361/2013 ORDER competent Authority on 12.08.2005. The role of the Appellate Authority in disciplinary matter must have ended there, with the modification in the punishment order, however, it further stipulated that the concerned workman shall also apply for voluntary retirement and he shall be paid his pensionary and other retirement dues accordingly. The workman accepted the said decision. It came to be approved vide order dated 28.12.2005, as reflected in para-9 of the award of the Tribunal. The necessary consequence of the said decision of the Appellate Authority and the consequential action taken by the concerned employee would be that the pension and other retirement dues should have been paid to him, which was denied and for that reason, the concerned employee moved the Industrial Tribunal. The Industrial Tribunal has allowed the Reference vide award dated 16.03.2013. During the pendency of the Reference, the concerned workman has died, and therefore direction is given to make payment to the legal heirs of the concerned employee. It is this award which is under challenge in this petition.
6. Having heard learned advocates for the respective parties and having gone through the material on record, and keeping above factual background in view, this Court finds that, the denial on the part of the petitioner Authorities to pay retirement benefits to the concerned employee was inconsistent, not only with the policy but the very decision of the Appellate Authority to which the concerned employee had responded positively. The action of the petitioner Authority can be upheld only under the Page 3 of 7 C/SCA/12361/2013 ORDER circumstances, if the concerned employee had not completed 20 years of service but that question is not required to be gone into for the reason that, the Appellate Authority of the Petitioner Employer itself had interfered with the order of termination and it was modified to the reduction of pay with the further rider that, the concerned workman opts for voluntary retirement. In substance the said decision is that the punishment is modified from termination to reduction of pay. The role of the Appellate Authority must end there. Any other stipulation was not warranted, however since the concerned employee had accepted it, therefore that question is not required to be gone into, however even if that decision is accepted as it is, it is not that the concerned employee wants to disown his obligation flowing from that decision, but it is the Management itself which intends not stand by its own decision, which the other side has already abide by and acted upon. The effect of the challenge to the impugned award of the Industrial Tribunal is that, it is the Appellate Authority which had, beyond its Authority given an option to the concerned employee to opt for voluntary retirement which he had already accepted, otherwise he would have continued in service. After having played that card, subsequently the objection was raised by the Management to project that the concerned employee was not entitled to the pensionery benefits. For doing so, the Authority has brought the service of the concerned employee of more than 25 years, to below 20 years, because only then the said decision could have been sustained. Various options are resorted to, to reach to this stage. Firstly it is contended that service from the year 1981 could not have Page 4 of 7 C/SCA/12361/2013 ORDER been taken into consideration, since it is only in the year 1985 that the concerned employee was taken on the establishment on regular basis. Even then the period would not be less than 20 years so as to disentitle the concerned employee. But, then the next argument put forward is that, though the decision of the Appellate Authority is dated 12.08.2005, and the acceptance of the voluntary retirement is by order dated 28.12.2005, still that date is to be treated as 12.08.2004, because only then the concerned employee can be termed to have missed his entitled for pension by couple of months. In this matter, the point as to whether the period between 1981 to 1985 should be treated as pensionable or not is not required to be gone into and keeping that point open, it is held that, even considering it from the year 1985, to the date of decision of the Appellate Authority, or date of acceptance of voluntary retirement, by no stretch of imagination, it could be said that the concerned employee had not put the minimum service required for voluntary retirement. Further, if that is not so, then the decision of the Appellate Authority would be reduced to non- workable. Option is also given by the Court to the learned advocate for the petitioner to withdraw that non-workable part of the decision, but the consequence thereof would be worse, since the Appellate Authority had already cancelled the order of termination on 12.08.2005, and the date of superannuation of the concerned employee was 30.09.2007, and therefore it would have entailed consequential benefits, including payment of arrears of wages, which was not the subject matter before the Industrial Tribunal. While examining the legality and Page 5 of 7 C/SCA/12361/2013 ORDER validity of the impugned award of the Industrial Tribunal, that relief cannot be granted to the respondent workman, and therefore that question is not gone into. However the submission of the learned advocate for the petitioner on that point, would take him to that situation only and therefore the same is rejected.
7. So far the argument that no reinstatement was granted by the Appellate Authority, it needs to be recorded that, the Appeal before the Authority was of the employee, challenging the termination order. The decision of the Appellate Authority was that, instead of termination, the punishment would be reduction of pay by two stages. The consequence is only that the termination is set aside, and therefore the reinstatement is the only and necessary consequence.
8. The contention that it is the resignation which was offered by the concerned employee, would also not take the case of the petitioner Management any further in view of the fact that it is the same, which was the offer of the Management, which the concerned employee has accepted. The decision of the Appellate Authority was to ask the concerned employee for voluntary retirement and avail pension and other retirement benefits. Under these circumstances, the change of nomenclature, if any, instead of retirement - resignation, by a raw workman in his letter, would also not make the order of the Industrial Tribunal vulnerable in any manner.
9. Considering the totality, this Court finds that, the Page 6 of 7 C/SCA/12361/2013 ORDER Industrial Tribunal has not committed any error in directing the petitioner Authority to make payment of pension and other retirement benefits to the legal heirs of the concerned employee. In view of above, I do not see any reason to interfere with the award passed by the Industrial Tribunal and this petition needs to be rejected.
10. For the reasons recorded above, this petition is rejected. It is directed that the petitioner- Authority shall pay the pension and other retirement dues to the legal heirs of the respondent employee within a period of six weeks from today. Notice is discharged. No order as to costs.
(PARESH UPADHYAY, J.) M O Bhati/36 Page 7 of 7