Gujarat High Court
Gujarat State Road Transport ... vs Abdulkarim I. Shaikh on 14 March, 2000
Equivalent citations: (2000)4GLR354
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Learned advocate Mr. Raval is appearing for the petitioner corporation and learned advocate Mr. Brahmbhatt is appearing for the respondent workman. In this petition, notice was issued by this Court on 13.12.1999 by making it returnable today i.e. 14.3.1999 and meanwhile, ad interim relief was granted qua back wages alone.
2. Today, when the matter was taken up for admission, learned advocates appearing for the parties have consented for taking up the matter for final disposal. Hence, Rule, service of which is waived by Mr. JS Brahmbhatt, learned advocate appearing for the respondent. With the consent of the learned advocates for the parties, the matter is taken up for final hearing and disposal today itself.
2. The facts of the present petition, in short, are that the respondent was working with the petitioner corporation as a driver and he remained unauthorizedly absent from 13.3.1992 and inspite of intimating him to report for duty, he didnot reported for duty and, therefore,he was served with a charge sheet on 17.6.1992 and after completion of the departmental inquiry, he was served with a show cause notice on 21.11.1992 andon 21.12.1992, he was dismissed from service. Said order of dismisal was challenged by the respondent byfiling first appeal to the departmental authority which came to be dismissed on30.10.1993. Thereafter, the respondent workman challenged the order of dismissal before the labour court, Baroda in reference No. 202 of 1995. Before the labour court, the respondent has filed the statement of claim and it was pointed out that he was working with the corporation for more than 12 years and while he was absent for the period as alleged, his wife had fallen sick all of a sudden and ultimately she died. This fact was brought to tne noticeof the depot manager of the petitioner Corporation and that the respondent workman has also send leave report and medical certificate and yet, without taking into consideration all these facts and thecertificat of leave produced by the respondent workman, departmental inquiry was initiated and in such departmental inquiry, he was not given any opportunity and ultimately, he was dismissed from service by the corporation. Before the labour court, the petitioner corporation has filed the written statement and has denied the allegations made by the workman.
3. Before the labour court, the respondent workman has not challenged the legality, validity of the departmental inquiry held against him but has kept his right open to challenge the legality and validity of the findings arrived at by the disciplinary authority. Before thelabour court, the respondent has also produced report of Sayaji Hospital, Baroda where his wife was admited by therespondent workman. The respondent was examined before the labour court at Exh. 12 and it was deposed byhim that his wife has expired during the alleged absence period and heis having six children and inspiteof the efforts made byhim, he has not ben able to secure any employment during the intervening period. The labour court has considered the fact that the respondent has remained absent from 10.3.92 without obtaining prior permission from theDepot Manager. Thelabour court has considered that the respondent had remained absent due tothe sickness ofhis wife who has ultimately expired and for that, necessary reports were sent by the respondent which were produced by the respondent before thelabour court vide Exh. 11/2. After taking nito consideration all these aspects, in exercise of the powers under section 11A of the Industrial Disputes Act, 1947, the labour court found that the impugned order of dismissalis harsh and unjustified and,therefore, thelabour court ordered reinstatement of the respondent workman in service with continuity and also directed the petitioner to pay 50%of the back wages during the intervening period under its impugned award dated 16thDecember, 1998.
4. Learned advocate Mr. Raval appearing for the petitioner has challenged the said award on the ground that the respondent has remained absent for a period of more than three months without giving any prior intimation. He has further submitted that not only that, inpast also, the respondent was dismissed from service twice and thelabour court has committed error in directing thepetitioner corporationto reinstate therespondent in service with 50% of the back wages. As against that, Mr.Brahmbhatt, learned advocate appearing for the respondent has submitted that the past record was not produced by the corporation before the labour court. Similarly, ithas alsonot been produced before this Court. Therefore, according to him, past record cannot be taken into consideration while deciding this petition. Hehas submitted that the respondent has remained absent from duty on accountof sicknessofhis wife who was under medical treatment and there was no any adult member in his family who can look after his ailaing wife and six children. Hehas further submitted that the wife of the respondent has died on 1.10.1992 and death certificate was alsoproduced by the respondent workman before the inquiry officer. However, said fact hasnot been taken into consideration by the disciplinary authority while passing theimpugned order of punishment. According tohim, the labour court has, while exercising the powers under section 11A of the ID Act,passed just, leval and valid award after taking into consideration all the facts and circumstances of the case and therefore, this court should not interfere with such legal and valid award passed by the labour court.
Ihave perused the impugned award. I have also considered the papers brought on record. I have also considered the arguments advanced by the learned advocates for the parties. I am of the opinion that since the past record wasnot produced before the labour court, the contention of Mr. Raval as regards past record of the respondent cannot be considered by this Court.Apart from that,one aspect is required to be taken into consideration that the respondent has remained absent for about more than three months. Mr. Ravalhas not been able to point out any infirmity in the impugned award passed by the labour court. I am of the opinion that such absence musthave caused lot oficonvenience and hardship to the petitioner corporation by engaging some other driver resulting into payment of over time to the driver etc. andalso disturbing the schedule. However, the reasons for remaiing absent were genuine and the circumstances were compelling which have been justified by the respondent workman. I am, therefore, of the opinion that in view of these aspects, it would be just and proper if the reinstatement of the respondent workman with continuity in service is upheld as awarded by the labour court. However, I amof the opinion that the impugned award passed by the labour court is required to be modified in so far as it relates to the grant of back wages. In the facts and circumstancesof the case, I am of theopinion that it would be just and proper if the back wages are reducued to theextent of 25%. Thus, instead of 50% back wages, the petitioner corporation should be directed to reinstte the workman in service with continuity of service and with 25% of back wages for theintervening period. Accordingly, the award of thelabour court is modified in so far as it relates to back wages. The back wages awarded by the labour court in favour of the respondent are reduced and the petitioner corporation is directed to reinstate therespondent workman in servicve with continuity of service with 25% back wages for the intervening period. The award passed by the labour court shall stand modified to the aforesaid extent. Remaining award pased labour court is confirmed in so far as it relates to reinsttement with continuity of service. The petitioner corporation is accordingly directed to reinstate the respondent in service with continuity of service and 25% of back wages from thedate of dismissal till the date of the impugned award i.e. 16.12.1998. The petitioner corporation is also directed to reinstate the respondent workman with continuity of service within four weeks from today and alsodirected to pay the 25% of the back wages for theintervening period from the dateof dismissal till 16.12.1998 and also pay full wages from the date of award 16.12.98 till date of actual reinsttement within twomonths from the date of receiptof certified copy of this order. Rule is accordingly made absolute in terms indicated hereinabove, with no order as to costs.