Gujarat High Court
Jamnagar Municipal Corporation vs Pravinbhai Premshankar Oza on 5 August, 2024
NEUTRAL CITATION
C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14459 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 14459 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAMNAGAR MUNICIPAL CORPORATION
Versus
PRAVINBHAI PREMSHANKAR OZA & ANR.
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR TR MISHRA(483) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 05/08/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 & 227 of the Page 1 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined Constitution of India, the petitioner - Jamnagar Municipal Corporation has prayed for the following reliefs :
"(A) Be pleased to admit the present Special Civil Application; (B) Be pleased to allow this Special Civil Application by way of passing appropriate orders, writ, writ of certiorari or mandamus or directions quashing and setting aside the award dated 30.3.16 passed by the Hon'ble Labour Court at Jamnagar allowing Ref.T No.114/04 preferred by the respondent no.1 by way of quashing and setting aside the dismissal order dated 28.7.01 and pay the back wages from the date of dismissal till the date of superannuation annexed as Annexure-E in the interest of justice. (C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to grant interim relief by way of staying the implementation, execution & operation of the award dated 30.3.16 passed by the Hon'ble Labour Court at Jamnagar allowing Ref.T No.114/04 preferred by the respondent no.1 by way of quashing and setting aside the dismissal order dated 28.7.01 and pay the back wages from the date of dismissal till the date of superannuation annexed as Annexure-E in the interest of justice. (D) Be pleased to call for record of Ref.T No.114/04 from the Hon'ble Labour Court at Jamnagar.
(E) Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem thought fit to pass such order."
2. The brief facts giving rise to the present petition are as under :
2.1 The respondent No.1 was an employee of Jamnagar Municipal corporation and serving in the cadre of Peon. As that respondent workman remained unauthorizedly absent for a long period from 23/09/1998 to 04/10/1998 and thereafter Page 2 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined from 19/10/1998 to 04/01/1999, he was issued a show cause notice on 29/11/1998 and as his reply dated 05/01/1999 offering explanation of illness of his wife was not found satisfactory as no medical certificate or reports were submitted, it was thought fit to impose a penalty of stoppage of one increment with future effect. It is the case of the petitioner Corporation that, the respondent workman again remained unauthorizedly absent without intimation for a long period and therefore, he was issued show cause notices but there was no reply thereto. Thereafter, even a public notice was published in newspaper on 03/04/2001 but the respondent workman failed to report for duty. Even the post sent at his registered address through registered post also returned undelivered. That, a leave report sent by fax message for a period of 90 days had expired but thereafter, the respondent workman failed to report for duty and did not bother about administration, public at large and continued to remain absent unauthorizedly resulting into passing of the order dated 28/07/2001 removing the respondent workman from the employment of Jamnagar Municipal Corporation. 2.2 It is the case of the petitioner that, after more than 3 Page 3 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined years, respondent workman approached the Labour Court at Jamnagar by way of filing Ref.T No.114 of 2004 [Old Ref. (LCJ) No.114 of 2004] praying to quash and set aside the said order and reinstate him in employment with all benefits. Thereafter, the petitioner filed a written statement and correct facts were brought on record. That, the details of past misconduct of unauthorized absenteeism were also brought on record. That, ignoring the facts and material on record about the misconduct and indiscipline committed by the respondent workman, the Labour Court allowed the said reference through award dated 30/03/2016 by way of quashing and setting aside the dismissal order dated 28/07/2001 with a further direction to the petitioner to pay the wages for a period commencing from the date of order of removal till the date of retirement by way of considering service as continuous service. 2.3 Being aggrieved and dissatisfied with the aforesaid award dated 30/03/2016 passed by the Labour Court, Jamnagar in Ref.T No.114 of 2004, the petitioner has preferred this petition under Article 226 & 227 of the Constitution of India read with the provisions of Industrial Disputes Act, 1947 with the aforesaid prayers.
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3. Heard learned advocate Mr.H.S. Munshaw, appearing on behalf of the petitioner - Corporation and learned advocate Mr.T.R. Mishra, appearing on behalf of the respondent workman.
4. Learned advocate Mr.Munshaw has argued that it is a gross case of absenteeism, wherein, the respondent workman remained absent from the service from 01/01/1993 and therefore, the Corporation had issued a public notice (at page-
47) which was published in the newspaper on 01/08/2001 instructing the respondent workman to report for duty, even prior thereto in absence of the respondent workman, final notice was published in newspaper on 30/04/2001 (at page-52) with regard to initiation of departmental proceedings against the respondent workman and for that though repeated communications were sent at the address of the respondent workman, all the correspondence returned with endorsement as unserved and it was informed to the respondent workman that if he did nor remain present before the Inquiry Officer on 11/04/2001 then the same shall be considered ex-parte and after considering all these relevant facts, the order of dismissal Page 5 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined was passed against present respondent workman on 28/07/2001. He has further submitted that the said order of removal from service was challenged by the respondent workman after almost 4 years by way of filing reference before the Labour Court, wherein, the Labour Court directed the petitioner to reinstate the responded workman with full back wages, which is absolutely erroneous, unjust and illegal. 4.1 Learned advocate Mr.Munshaw has further submitted that this is a gross case of habitual absenteeism as the respondent workman remained unauthorizedly absent for a long period and he was also issued a charge-sheet and a full fledged Departmental Inquiry was also initiated against him but he did not remain present even before the Inquiry Officer and therefore, a public notice was also issued in the newspaper, however, the respondent workman did not remain present before the petitioner and after almost 3 years the reference was filed by the respondent workman before the Labour Court and therefore, the impugned award passed by the Labour Court is erroneous and unjust. He has further submitted that the Labour Court has exercised jurisdiction under Section 11 of the I.D. Act while interfering in the order of Page 6 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined punishment imposed by the petitioner after completing the formalities and therefore, the impugned award under challenge is erroneous, unjust and illegal. He has also submitted that on none of the occasions, the respondent workman remained present though number of communications were sent to him, even though the Labour Court has observed that it is a case of serious charge of habitual absenteeism, however, the Labour Court has passed the impugned award directing the petitioner to reinstate the respondent workman, which is erroneous, unjust and illegal and the same be quashed and set aside and the present petition be allowed.
5. As against that, learned advocate Mr.T.R. Mishra, appearing on behalf of the respondent workman, has submitted that so far as the allegations with regard to absenteeism is concerned, the respondent workman used to remain absent in the office because of illness of his wife. He has further submitted that the respondent workman had produced copies of certificate with regard to the illness of his wife and therefore, the impugned award passed by the Labour Court is in consonance with the settled legal principles of law and after considering the facts of the case, the Labour Court Page 7 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined has rightly passed the impugned award thereby directing the petitioner to reinstate the respondent herein with other consequential benefits and therefore, no interference is required to be called for in the present petition. Learned advocate Mr.Mishra has referred and relied upon the decision of the Hon'ble Apex Court rendered in case of Krushnakant B. Parmar Vs. Union of India, reported in [2012] 3 SCC 178 and submitted that, in a similar set of facts, the Hon'ble Apex Court allowed the petition and quashed and set aside the order of removal from service and therefore, in the present case also, the Labour Court has rightly interfered in the order of dismissal while imposing the punishment by the authority and even the order of reinstatement without backwages was passed by the Labour Court. Learned advocate Mr.Mishra has therefore, urged that under such circumstances, the present petition be dismissed and the impugned award passed by the Labour Court be confirmed.
6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. It appears from the record that the order of dismissal was passed by the authority after considering the fact that though Page 8 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined the departmental proceedings were initiated against the respondent workman, he had not remained present before the Inquiry Officer and therefore, public notice was issued for attending the departmental proceedings and the last show cause notice was also issued in the newspaper on 30/04/2001, however, the respondent workman had chosen not to remain present in the departmental proceedings initiated by the petitioner, and now before this Court the respondent workman is agitating that without initiation of any departmental proceedings, the punishment came to be imposed upon the respondent, which is disproportionate to the charges levelled against him. Considering the fact that the Labour Court has, on one hand while exercising the powers under Section 11(a) discussed in paragraph 13 came to the conclusion that it is a case of gross absenteeism, however, on the other hand, while interfering with the order of punishment, the Labour Court had exceeded its jurisdiction while passing the impugned award and therefore, the impugned award passed by the Labour Court is erroneous, unjust and illegal and the same deserves to be quashed and set aside. Of course, the respondent workman has put up his service for 18 years but, considering the fact that thereafter he had continuously remained absent though Page 9 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined number of communications were issued by the petitioner which were served upon the respondent workman but, he had chosen not to remain present before the authority and even no explanation was given for his misconduct and even in the departmental proceedings initiated by the petitioner, he had not remained present before the Inquiry Officer, this Court is of the opinion that the impugned award passed by the Labour Court deserves to be quashed and set aside. 6.1 At this juncture, it would be appropriate to consider the judgment of this Court passed in Special Civil Application No.5756 of 2009 decided on 01/07/2024, wherein, in the similar set of facts, this Court after considering the judgment of the Hon'ble Apex Court in case of Narayan Sadhashiv Mohite vs. Baroda Municipal Corporation and another, reported in 1992 (2) GLR 1559, more particularly paragraphs 13, 14 and 15, and considering the facts of that case, the petition was allowed by this Court and the impugned award passed by the Labour Court was quashed and set aside. Herein the present case, the allegation is with regard to the absenteeism and there was no sufficient cause or explanation tendered by the respondent workman with regard to the said Page 10 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024 NEUTRAL CITATION C/SCA/14459/2016 JUDGMENT DATED: 05/08/2024 undefined absenteeism. Therefore, the punishment order by the competent authority is in consonance with charge and there is no any illegality or any perversity in the impugned award passed by the Labour Court.
7. For the foregoing reasons, the present petition is hereby allowed. The impugned award dated 30/03/2016 passed by the Labour Court, Jamnagar in Ref.T No.114 of 2004 is hereby quashed and set aside. Rule is made absolute.
8. In view of the disposal of the main matter, the pending Civil Application stands disposed of accordingly.
Direct service is permitted.
(HEMANT M. PRACHCHHAK,J) Dolly Page 11 of 11 Downloaded on : Fri Aug 16 22:09:41 IST 2024