Gujarat High Court
Gandhi Prakashchandra Harikrishna vs Gujarat State Road Transport ... on 4 December, 1995
Equivalent citations: (1996)2GLR546, (1997)ILLJ99GUJ
JUDGMENT
M.R. Calla J.
1. Rule. Mr. Y.N. Ravani' waives service of rule on behalf of the respondents. This Special Civil Application is directed against the order dated 20.01.1994 passed by the Conciliation Officer and the Assistant - Labour Commissioner, Bharuch, under Section 33(2)(b) of the Industrial Disputes Act, 1947
2. The petitioner herein was working as driver (Badii Worker) at Jhagadia Bus Depot under Bharuch district. From which date the petitioner was working as such and on which date he was appointed as such has not been given out in the petition. It is the petitioner's case that he was served with a show cause notice alleging certain misconduct against him for remaining absent on several days without leave and thus he faced the inquiry on the allegation of unauthorised absence. The charges were framed against the petitioner on 15.09.1992.
The petitioner did not remain present before the Inquiry Officer. The charges were found to be proved against the petitioner by the Inquiry Officer and on that basis second show cause notice dated 19.09.1992 was served upon him. The petitioner has stated that the respondent No. 2 i.e. the Competent Authority Central Administrator (B) S.T. Jhagadia, district Bharuch passed the order of dismissal against the petitioner on 10.10.1992. Against this order dated 10.10.1992, the petitioner preferred an Appeal before the respondent No. 1, which is said to be still pending since 21.10.1992.
The respondent had also sent a sum of Rs. 1,579/- by Money Order to the petitioner in terms of Section 33(2)(b) and moved application before the Conciliation Officer and Assistant Labour Commissioner, Bharuch, for approval of the order of dismissal as other general disputes were pending and therefore, the approval was required under Section 33(2)(b) of the I.D. Act. The petitioner filed his objections before the Conciliation Officer and Assi,;tant Labour Commissioner at Bharuch, who passed the order dated 20.1.1994 granting approval of the appiication in favour of the respondents and against this order dated 20.1.1994, the present Special Civil Application has been moved.
Return has been filed on behalf of respondent No.1, seeking to traverse the claim of the petitioner stating therein that the present Special Civil Application is not maintainable as the petitioner had already availed the remedy of appeal before the respondent No. 1. It is also stated that petitioner did not remain present before the Inquiry Officer and looking to the gravity of the misconduct the order of punishment has been passed. It has been further submitted that grounds of sickness sought to be raised by the petitioner in this petition are disputed.
It is the disputed question of fact and same cannot be agitated before this Court in the proceedings under Art. 226 of the Constitution of India more particularly when the petitioner had not even filed the medical certificate in the departmental inquiry proceedings. It has been also submitted that even otherwise the remedy lies under I.D. Act for raising an industrial dispute. When the matter came up before this Court on 26.9.1995, it was pointed out by Mr.Ravani appearing for the respondents that the notice returnable had been issubd by this Court on 4-8-1995 for the purpose of settlement and the Divisional Controller of Guiarat State Road Transport Corporation, Bharuch, was likely to approach the learned Counsel for the Corporation for the purpose. The opportunities were, therefore, granted to settle the matter and after hearing both the sides a suggestion was made by the Court on 9-11-1995, that the petitioner may be taken back in service without back wages.
The learned Counsel for the petitioner again sought time and the time was granted. Today when the matter came up on Board and the order issuing rule was passed, Mr. Ravani, learned Advocate for the respondent pointed out that the respondent-Corporation was prepared to take back the petitioner in service without any back wages for the intervening period with an order of stoppage of five increments with cumulative effect for the proved misconduct. This offer made on behalf of the Corporation by Mr. Ravani was not acceptable to the petitioner as submitted by Mr. Dave, learned Counsel for the petitioner and therefore, the matter was heard.
3. Mr. Dave has challenged the order dated 20.1.1994 passed by the Conciliation Officer and Assistant Labour Commissioner, Bharuch, on the ground that the order granting approval was bad in the eye of law as it was a case of short payment of a day while making payment of one month pay as contemplated under Section 33(2)(b) of the I.D. Act. That punishment of dismissal imposed against the petitioner was highly disproportionate and shocking to the conscience and further that the impugned order of dismissal had been passed by respondent No. 2, who is subordinate to respondent No. 1, whereas the petitioner had been appointed by respondent No.l.
4. So far as the first contention on behalf of the petitioner that he had been paid a day's salary le@s, and therefore, the payment of one month pay is not in accordance with the provision of Sec. 33(2)(b) of the Act, is concerned, it may be pointed out that 30 days' salary in case of the petitioner comes out to be Rs.1,578.30 Ps. and he was paid Rs. 1,579/- the round figure. The argument of the learned Counsel of the petitioner is that the order of dismissal was passed on 10.10.1992, and therefore, one month period according to him would expire on 10.11.1992, and since the October is a month of 31 days, the petitioner should have been paid for 31 days whereas he has been paid for 30 days only. By paying Rs. 51.90 less it cannot be said that one month notice pay has been paid in accordance with the provision of Section 33(2)(b) of the Act. The requirement under proviso below Section 33(2) is for payment of wages for one month, therefore, the question remains as to whether one month would mean 30 days or 31 days. In the instant case, should the approval accorded by the Conciliation Officer and Assistant Labour Commissioner be set aside on this ground when the petitioner has already paid wages for a period of 30 days? Mr. Dave has submitted that the wages have to be computed for the coming future month and for the purpose of Section 33(2)(b) of the Act, the wages paid in the month preceding the date of the order of dismissal should not be made the basis. In order to support his contention, he has cited before me 1990 i CLR 618 (Bharat Electronics Ltd., Bangalore v. Industrial Tribunal, Kamataka). It has been observed in para 10 of this decision of the Supreme Court that Section 33(2)(b) mandates that unless the workman is paid wages for one month and an application as contemplated is made by the employer for approval of his action, no such workman can be discharged or dismissed. The intention of the legislature in providing for such a contingency was to soften the rigour of unemployment that will be faced by the workman, against whom an order of discharge or dismissal is passed.
Such wages for one month are conceptually for the month to follows, i.e. the month of unemployment following the date of dismissal and not a repetitive wage of month previous to the date of dismissal. Mr. Dave has also placed reliance on a decision of Orissa High Court reported in AiR 1952 Orissa 2719 (Marakanda Sahu v. Lal Sadananda).
The Division Bench while considering this case in the context of Section 9 of the Code of Civil Procedure considered as to how the period of one month is to be computed for the purpose of limitation when the order had been passed on 25.11.1948, and the application to deposit the amount had been moved on 25.10.1948 i.e. the date on which the order was passed could not be included while computing the period of one month, and thus, in my opinion, the Orissa High Court had decided the case and interpreted the question of one month for the purpose of exclusion of the day on which the order was passed and by no means this decision can be of any help to the case of the petitioner for any purpose. In Bharat Electronics Ltd. v. Industrial Tribunal, Karnataka (supra) the Supreme Court has categorically held that the Court has to blend the contextual interpretation with the conceptual interpretation, the Supreme Court in this case was primarily concerned as to whether the night shift allowance could be a part of the wages or not and the night allowance becomes due only in the event of actual working and not otherwise. The main object of Section 33(2)(b) is to soften the rigour of unemployment to be faced by the workman. If that is the primary object, the Court has to blend the contextual and conceptual interpretation. In the facts of this case when 30 days' wages have been paid to the concerned workman, the order of dismissal was rightly approved and it could not have been disapproved on the ground that he should have been paid for 31 days instead of 30 days because the order was passed on 10.10.1995 and the October is a month of 31 days. If such an interpretation is taken, in my opinion, it would render uneven and discriminatory results. A workman who is sought to be dismissed in the month of January shall get only 28 days' wages. If a person is sought to be dismissed in a month where the following month is of 30 days then he will get 30 days wages; if he is sought to be dismissed in a month which is of 31 days or when the next future month is also of 31 days like July & August, then he will have to be paid for 31 days. If a workman is sought to be dismissed in the month of January in a leap year then he will be required to be paid for 29 days. Such could never be the intention of the legislature to vary the amount so as to soften the rigour of the hardship which the workmen have to face on account of unemployment in case of their dismissal. So far as the question to soften the rigour of unemployment is concerned, it appears to be the basic object and such provision cannot be construed to mean that the workman who has been paid for 30 days' wages does not get advantage of conceptual object to soften the rigour of unemployment and he would have got the benefit of softening the rigour of unemployment had he been paid for 31 days instead of 30 days. Even otherwise, the month as such is not defined under the I.D. Act, and if we go to the General Clauses Act, 1897, 'month' shall mean a month reckoned according to the British Calendar and that also does not solve the problem in counting days whether 30 or 31. In the decision of the Orissa High Court i.e., Marakanda Sahu v. Lal Sadananda (supra), there is some discussion about the meaning which has been given to the term 'month' with reference to the Iyer's Law Lexicon and the practice in the context in which the Court was considering the scope to compute limitation for the purpose of application for restoration. To give appropriate interpretation to the term of the 'month' as contemplated under Section 33(2)(b) of the I.D. Act in the background of the basic concept of softening the rigour of the hardship of unemployment, I fine that the purpose is fully served if the employee-workman is paid wages for a period of 30 days and if the Conciliation Officer and Assistant Labour Commissioner has accorded the approval to the dismissal, such approval granted by the Conciliation Officer cannot be set aside on the ground that the wages have not been paid for 31 days and they have been paid for 30 days only. We have to see as to whether the purpose of softening the rigour of hardship of unemployment stands served or not. If that purpose is served the condition precedent contemplated under Section 33(2)(b) must be deemed to be satisfied and the requirement of law stands substantially complied with. Substantial compliance of such provision cannot be interfered with on the technical any hyper-technical ground of counting the days of the month to be 31 days instead of 30 days. Therefore, neither the order of dismissal nor the order passed by the Conciliation Officer can be disturbed or interfered with on this ground and the contention of the learned Counsel for the petitioner, therefore, fails on this aspect of the matter.
5. The next contention of the learned Counsel for the petitioner that the punishment of dismissal imposed against the petitioner for the proved misconduct was disproportionate and shocking to the conscience was given up by learned Counsel for the petitioner himself. In fact, this contention is now not available to the petitioner for the simple reason that the respondent-Corporation has itself come out with a case to take back the petitioner in service without any back wages and to pass order withholding five annual increments with cumulative effect instead of dismissal. Thus, the Corporation is prepared to take the petitioner back in service. The petitioner cannot be paid back wages for the simple reason that the order of dismissal was precipitated and the inquiry was initiated against him for which no one else but he himself is responsible as it is a case of uncontested and proved misconduct of unauthorised absence for several times and for such misconduct of unauthorised absence, if the Corporation is passing the order of stoppage of five increments without cumulative effective it cannot be said that the punishment is too harsh and excessive.
6. So far as the second contention raised by Mr. Dave that the order had been passed by respondent No. 2 and not by respondent No. 1, it has been frankly stated by Mr. Dave that on this factual aspect of the matter no grievance had been raised earlier by the petitioner at any point of time, neither before the concerned authority nor before the Conciliation Officer and even with regard to pending appeal before respondent No. 1, Mr. Dave is not in a position to say as to whether such grievance was raised in the appeal or not.
7. In the facts and circumstances of the case and in the light of the discussion and submissions raised before me on behalf of learned Counsel all the contentions raised by the petitioner herein in this petition fail and no interference is warranted but on the basis of the statement made by the learned Counsel for the Corporation in the light of the proceedings which have taken place in this Special Civil Application and the very fact that the notice itself had been issued by the Court for the purpose of settlement and whereas the Corporation has come out with an offer to take the petitioner back in service without any back wages with an appropriate order of punishment of stoppage of five increments with cumulative effect, it is ordered that the petitioner-workman shall be taken back in service on or before 1st January, 1996, he shall not be entitled to any back wages for the period from the date of his dismissal to the date he is taken back in service any time on or before 1st January, 1996, but it will be open for the respondent Corporation to pass appropriate orders of punishment for the proved misconduct against the petitioner-workman as has been stated on behalf of the Corporation to the extent of stopping five increments with cumulative effect. This Special Civil Application is, therefore, allowed in part to the extent indicated above and the rule is also made absolute accordingly with no order as to costs.
8. Order accordingly.