Gujarat High Court
Daxin Gujarat Vij Company Limited vs Vasanjibhai Jaglabhai Harijan on 2 May, 2014
Author: K.J.Thaker
Bench: K.J.Thaker
C/SCA/14781/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14781 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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DAXIN GUJARAT VIJ COMPANY LIMITED....Petitioner(s)
Versus
VASANJIBHAI JAGLABHAI HARIJAN....Respondent(s)
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Appearance:
MS LILU K BHAYA, ADVOCATE for the Petitioner(s) No. 1
MR BHARAT JANI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 02/05/2014
ORAL JUDGMENT
1. By way of this petition, petitioner has prayed the following prayers:-
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(A) Your Lordships may be pleased to admit and
allow this petition.
(B) Your Lordships may be pleased to issue a writ of
certiorari or any other appropriate writ order or direction in the nature of certiorari quashing and setting aside the judgement and award dated 31.1.2003 (Annex.T) passed by the Labour Court, Surat in Ref. LCS/No.300/93.
(C) To stay the execution, implementation and operation of the impugned judgement and award (Annex.T) pending admission, hearing and final disposal of this petition.
(D) To grant ad-interim relief in terms of Para (C) hereinabove.
(E) Grant such other and further relief which Your Lordships deem just, fit and proper in the interest of justice.
2. Brief facts leading to the filing of the present petition are as under:-
2.1. The respondent was appointed as a helper. It was observed that the respondent was remaining absent from duty. That on 8.3.1991, he was given a notice that he had remained absent without any report, intimation or approval. He was called upon to submit his explanation and also called upon to Page 2 of 11 C/SCA/14781/2003 JUDGMENT join duty vide the said letter dated 8.3.1991 which was sent by Regd. Post A.D. 2.2 Thereafter against a notice dated 27.5.1991 was given to the respondent that he was on sick leave from 5.5.1991 to 8.5.1991 . He was required to join duty on 9.5.1991. But till 27.5.1991, he did not join duty. It was also brought to his notice that since he is helper and in his absence in the village Vankanar people are facing difficulties and his duty is such that he was required to immediately join and perform his essential duties. He was therefore directed to join duties immediately. He was also directed to join duties or produce medical certificate and if he does not produce medical certificate or remain present strict action will be taken against him.
2.3 Thereafter on 29.6.1991 respondent was given Regd. A.D.Post Notice wherein it was observed that he is remaining negligent and Page 3 of 11 C/SCA/14781/2003 JUDGMENT irregular in attending to his duties and remaining continuously absent for which details were given in the said notice. He was informed that on 19.6.1991 after giving formal resumption report he had left the headquarter. He was warned not to go on leave without permission and not to leave headquarter without the permission of his superiors. 2.4 Thereafter on 12.7.1991 a Regd.Post A.D notice was given to the respondent that he was absent from duty since 9.5.1991 and it was informed that if he does not join duty action will be taken under Service Regulation No. 113 and he will be discharged from service. Last opportunity was given to the respondent to join the duty vide this notice.
2.5 Thereafter he was issued Regd.Post A.D notices dated 19.9.1991, 7.10.1991, 24.10.1991 informing the respondent that he has remained absent from duty since 9.9.1991 calling upon him to Page 4 of 11 C/SCA/14781/2003 JUDGMENT resume duties within 10 days from the receipt of the notice failing which it would be treated that he is not interested in service and he will be discharged from service under Service Regulation No. 113. 2.6 Learned counsel for the applicant submitted that thereafter Regd.A.D.Notice dated 23.11.1991 was sent to the respondent informing him that he has remained absent from duty without permission since 9.9.1991 without any leave report and without prior approval of his superiors or even oral request.
That he was asked to resume duties vide notices dated 19.9.91, 7.10.91 and 24.10.91. However, he has neither resumed duties nor submitted explanation and hence he is liable for action under Service Regulation No. 113 . Hence he was given last chance to resume duties to resume duties on or before 30.11.1991 failing which he would be discharged from service under Service Regulation No. 113.
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C/SCA/14781/2003 JUDGMENT 2.7 Learned counsel for the applicant further
submits that thereafter the respondent joined duties on 22.11.1991. He further submits that thereafter again the respondent remained absent from duty from 29.4.1992. Hence Regd.Post A.D notice dated 12.5.1992, 3.6.1992 were issued to him. 2.8 Learned counsel for the applicant submits that on 7.6.1992 respondent gave reply to the notice and stated that he was not having good health and therefore he was absent from duty. He also informed that now onwards before going on leave he will take permission of the Board and he will attend to his duties regularly and requested to forgive him and stated that now if the commits default, he will abide by action may be taken by the applicant as per rules of the Board. 2.9 Learned counsel for the applicant submits that thereafter on 15.6.1992 notice was sent calling upon the respondent to explain for his unauthorised Page 6 of 11 C/SCA/14781/2003 JUDGMENT absence from duty from 20.5.1992 and to see the Executive Engineer personally.
2.10 Learned counsel for the applicant submits that thereaftr on 5.8.1992 notice was given to the respondent that he is absent from duty since 15.7.1992.
2.11 Learned counsel for the applicant submits that thereafter notices dated 11.8.1992 and 25.8.1992 were given to the respondent falling which it was informed that it will be treated that he is not interested in service and action for discharging him under Service Regulation No.113 will be taken.
2.12 Learned counsel for the applicant submits that thereafter on 25.8.1992 a Regd.Post.A.D Memo was given to the respondent stating that due to his unauthorized absence from duty the work of the petitioner suffers.
2.13 Learned counsel for the applicant submits
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that in response to this notice respondent submitted an evasive reply dated 1.9.1992.
2.14 Learned counsel for the applicant submits that thereafter on 10.9.1992 Deputy Engineer, Bardoli wrote letter to the Executive Engineer, Vyara enclosing therewith report of Assistant Lineman Shri R.C.Pawar stating the facts about the absence of the respondent.
2.15 Learned counsel for the applicant submits that thereafter vide order dated 25.9.1992 respondent was discharged from service under Service Regulation No. 113 for being unauthorizedly absent from duty since 26.7.1992 without any prior approval of any superior officers and not furnishing any explanation for the same. 2.16 Learned counsel for the applicant submits that the Regulation No. 113 of the Service Regulation No. 113 reads as under:-
"Continued absence from duty or overstay, in Page 8 of 11 C/SCA/14781/2003 JUDGMENT spite of warning to return to duty, shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board Conduct, Discipline and Appeal Procedure. "
3. Learned counsel for the applicant submits that the Labour Court, Surat however by its judgement and award dated 31.1.2003 partially allowed the reference and directed the petitioner to pay to the respondent 50% back wages payable to the respondent from the date of discharge and to reinstate him in service within 3o days from the date of publication of the award with all the incidental benefits. The Labour Court also directed the petitioner to pay to the respondent Rs.1,000/- by way of cost of reference.
4. Learned counsel for the applicant submits that the judgement and award passed by the Labour Court is illegal and without jurisdiction. It is also directly in conflict with the decision of the Hon'ble the Supreme Court in the case of Gujarat Electricity Page 9 of 11 C/SCA/14781/2003 JUDGMENT Board and anr. Vs. Atmaram Sungomal Poshani in Civil Appeal No. 3561 of 1985 which was decided on 31.3.1989.
5. It is submitted on behalf of Mr.B.G.Jani, learned advocate for the respondent that the respondent has already retired in due course. He has been reinstated pursuant to the order of the Tribunal.
6. However, as the matter was not heard, respondent has reached the age of superannuation. Therefore, the issue of reinstatement does not arise. However in Letters Patent Appeal No. 1974 of 2004 and allied matters which were carried in Appeal before the Hon'ble Apex Court by way of the order passed by learned Single Judge in Special Civil Applications No. 9492 of 1996, 8587 of 1998, 9461 of 1996, 3326 of 1998 and 1548 of 1998 respectively. Hence this petition is disposed of, without going into merits of the case. It goes without saying that the Board shall pay all the Page 10 of 11 C/SCA/14781/2003 JUDGMENT retirement benefits to the respondent within a period of 12 weeks on receipt of this order, failing which 12% interest will be paid by the Board.
As the judgement in the said matter would enure for the benefit of the present respondent as stated by Ms. Bhaya, this petition is allowed with no order as to costs.
(K.J.THAKER, J) bina Page 11 of 11