Gujarat High Court
Rajkot Municipal Corporation vs Rajeshbhai Ramjibhai Purabiya on 20 March, 2024
NEUTRAL CITATION
C/SCA/7556/2023 ORDER DATED: 20/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7556 of 2023
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RAJKOT MUNICIPAL CORPORATION
Versus
RAJESHBHAI RAMJIBHAI PURABIYA & ANR.
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Appearance:
MR NISHANT LALAKIYA(5511) for the Petitioner(s) No. 1
MS MAMTA R VYAS(994) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 20/03/2024
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Ms. Mamta Vyas waives service of notice of rule on behalf of the respondent - workman.
2. Rajkot Municipal Corporation as petitioner has filed this petition challenging the award of Labour Court, Rajkot dated 26.11.2019 in Reference (LCR) No. 73 of 2013.
3. The facts in brief as referred in the petition are as under:
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It is the case of the petitioner - Municipality that the respondent workman was remaining absent without prior permission and for his unauthorized absenteeism he was penalized in past. Earlier also he was warned many times and Page 1 of 8 Downloaded on : Tue Mar 26 20:33:55 IST 2024 NEUTRAL CITATION C/SCA/7556/2023 ORDER DATED: 20/03/2024 undefined after taking in to consideration his apology and assurances given for not remaining unauthorized absent, he was continued in service. Despite earlier assurances given, he remained unauthorized absent and on account of same he was dismissed from service by order dated 18.06.2011. The said order was challenged by workman before the Labour Court. Rajkot. It was case of the workman before Labour Court, Rajkot that he was terminated from service without following due procedure under the provisions of Industrial Disputes Act, 1947 ('the Act' for short). He was working with petitioner - Municipal Corporation since last 15 years and worked continuously on sanctioned post and despite that he was terminated on 18.06.2011 and thereby there was breach of Section 25F, G and H of the Act. The Labour Court, Rajkot upon adjudication held the termination as illegal and thereby directed the petitioner - Municipal Corporation to reinstate the workman with continuity of service and 20% backwages. A cost of Rs.2,000/- was also awarded. Aggrieved by the award dated 26.11.2019 by the Labour Court, Rajkot present petition is filed.
4. Heard learned advocate Mr. Nishant Lalakiya for the petitioner - Municipal Corporation and learned advocate Ms. Mamta Vyas for the respondent - workman.
5. Learned advocate Mr. Nishant Lalakiya for the petitioner
- Municipal Corporation has placed on record the paper book. Learned advocate for the petitioner submitted that the award of the Labour Court, Rajkot dated 26.11.2019 is erroneous because the respondent - workman remained absent without Page 2 of 8 Downloaded on : Tue Mar 26 20:33:55 IST 2024 NEUTRAL CITATION C/SCA/7556/2023 ORDER DATED: 20/03/2024 undefined prior permission many times. Relying upon documents produced in the paper book, he submitted that the respondent
- workman was appointed in the year 1989. Thereafter, the documents on record suggest that from 10.06.2003 till the date of his dismissal, he remained unauthorized absent many times. For earlier occasions the respondent had accepted his misconduct of remaining unauthorized absent without prior permission of his superiors and also tendered apology for the same. Considering his apology and his assurance of not repeating the misconduct in future, he was taken back in service.
5.1 For his submissions he relied upon show-cause notice dated 21.06.2003 and the apology letter given on 23.07.2003. Further, once again the workman remained absent in the year 2006, and for his absenteeism of 19.06.2006, he requested to take him back in service and thus, he was taken back in service. On 12.02.2008 another show-cause notice was given for his unauthorized absence. In response the respondent accepted his misconduct and tendered apology. A final show- cause notice was also issued on 25.09.2008 and considering the reply of the respondent, he was taken back in service. However, the respondent remained unauthorized absent in the year 2011. Therefore, show-cause notice was issued on 16.03.2011 for his authorized absenteeism and after considering his reply dated 17.03.2011, he was dismissed by an order dated 18.06.2011. Learned Advocate submitted that the conduct and approach of respondent - workman speaks itself, wherein in past on number of occasions he had accepted his misconduct and on his assurance of not remaining absent Page 3 of 8 Downloaded on : Tue Mar 26 20:33:55 IST 2024 NEUTRAL CITATION C/SCA/7556/2023 ORDER DATED: 20/03/2024 undefined without prior permission or without leave of the Corporation he was taken back in service. Despite several opportunities granted, he again remained unauthorized absent and therefore final show-cause notice dated 16.03.2011 was issued and after considering his reply, dismissal order dated 18.06.2011 was passed. Therefore, the award of Labour Court, Rajkot quashing and setting aside the dismissal order is erroneous.
5.2 Further, the respondent was working as a dailywager and therefore no procedure is required to be followed. In the present case, before order of dismissal dated 18.06.2011 a final show-cause notice was served. The explanation of the workman was considered and thereafter dismissal order was passed. Hence, there is no irregularity in dismissing the respondent - workman and thus the award of the Labour Court, Rajkot deserves to be quashed and set aside. Since the workman had admitted his misconduct, the quantum of punishment was not to be interfered by the Labour Court, Rajkot and hence the award of the Labour Court, Rajkot is erroneous. Learned advocate thus submitted that the Corporation since engaged in appointing number of employees, strict discipline is required to be adhered to and in the present case, since the workman was in habit of keeping himself absent from work without prior permission or sanctioned leave, the order of dismissal is appropriate. Once the misconduct has been accepted by the workman, the scope of judicial review with regard to quantum of punishment is minimal and therefore the award of the Labour Court is erroneous and deserves to be quashed and set aside.
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6. On the other hand, learned advocate Ms. Mamta Vyas for the respondent - workman submitted that following chronology would be relevant for adjudication of present petition. The award of Labour Court, Rajkot directing the petitioner to reinstate workman with continuity and backwages was passed on 26.11.2019. In the award dated 26.11.2019, the Labour Court after taking into consideration the documents on record, held that the order of dismissal dated 18.06.2011 is erroneous because there was breach of Section 25-F, 25-G and 25-H of the Act. The Labour Court also took note of the fact that in past, the respondent workman was put to notice for his unauthorized absent and after taking into consideration his explanation/reply and his apology with the assurance of not remaining absent in future, was continued in service. The Labour Court however held that prior to dismissal since the workman was working with the Corporation since last 15 years and had completed 240 days in a year the procedure as contemplated under the provisions of the Act shall have to be followed which was not done in the present case and therefore, the award of the Labour Court, Rajkot is appropriate. Further, the order of punishment is sigmatic because the same has put bar on future employment of the workman and therefore without following the procedure as also without conducting any inquiry the dismissal order is illegal.
6.1 Referring to dates Learned Advocate for respondent submitted that Labour Court passed an award on 26.11.2019. Since the award was not implemented the workman filed application dated 02.06.2021 seeking execution of the award. Thereafter, one more request dated 24.01.2023 was made for Page 5 of 8 Downloaded on : Tue Mar 26 20:33:55 IST 2024 NEUTRAL CITATION C/SCA/7556/2023 ORDER DATED: 20/03/2024 undefined execution of the award, despite that no action was taken/initiated by the petitioner - Municipal Corporation. Since the award dated 26.11.2019, was not implemented Special Civil Application No. 2686 of 2023, was filed which is pending and tagged with present petition. Against the award dated 26.11.2019, the petitioner-Corporation filed petition on 24.02.2020, with the filing number F/Special Civil Application No. 7670 of 2020. The said writ petition was dismissed on account of non-removal of office objection by order dated 29.06.2022. Thereafter, Application No. 1 of 2023 was filed on 25.01.2023 wherein the order was granting time to remove office objection on or before 01.03.2023. The matter was restored to its file on 28.02.2023. In the meantime, in Special Civil Application No. 7556 of 2023 filed by the workman seeking execution of the award, where notice was issued on 26.06.2023. Thus, it is evident that after filing of petition by the workman, action was initiated by the petitioner - Corporation seeking stay of implementation and execution of the award. The petition pending with office objection being invalid petition no cognizance is required to be taken. Learned advocate for the respondent - workman submitted that otherwise on merits also, the conduct of the Municipality is such that no interference is called for. She submitted that the award of the Labour Court being appropriate, no interference is required.
7. Considered the submissions. Revisitation of the facts reveal that workman was working with the Municipal Corporation since 1989 and he continued in service for a period of 15 years prior to his date of dismissal i.e. on Page 6 of 8 Downloaded on : Tue Mar 26 20:33:55 IST 2024 NEUTRAL CITATION C/SCA/7556/2023 ORDER DATED: 20/03/2024 undefined 18.06.2011. From the record it is noticed that the workman in past had remained on unauthorized absent without prior permission in the year 2003, 2006, 2007, 2008, 2009, 2010 and 2011. For his absenteeism he was put to notice. His explanation was considered and upon acceptance of his apology or assurance of not remaining absent in future he was taken back in service. Thus, it cannot be denied that the respondent had continuously worked from 1989 till the date of dismissal.
8. The order of dismissal was passed under Section 56 of the Bombay Provincial Municipal Corporations Act, 1949. The order of dismissal refers that in future, the respondent would not be entitled to service in any of Municipality. Thus, it cannot be denied that after having completed 15 years of service, he was dismissed without following due procedure under the provisions of the Act, and only a show-cause notice was given and his reply was considered. Further, no contrary evidence was placed by the Municipal Corporation to disprove that the workman had not completed 240 days in a year. On that ground, the Labour Court held that since the dismissal of the workman was without following due procedure under the provisions of the Act, there is breach of Section 25F, G and H of the Act. Further, it cannot be ignored that the petition challenging the award of Labour Court, Rajkot dated 26.11.2019 was filed in the year 2020 and the same remained under office objection till 2023 and the petition was presented before the Court after filing of the petition by the workman seeking execution of the award.
9. In view of above, more particularly, considering the Page 7 of 8 Downloaded on : Tue Mar 26 20:33:55 IST 2024 NEUTRAL CITATION C/SCA/7556/2023 ORDER DATED: 20/03/2024 undefined breach of Section 25F, G and H of the Act since the workman had completed 15 years of service and had completed 240 days in a year, this Court does not see any error in the award of the Labour Court and therefore, the present petition is rejected. Rule is discharged.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 8 of 8 Downloaded on : Tue Mar 26 20:33:55 IST 2024