SCA/10117/2006 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10117 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= NAGDANBHAI HAMIRBHAI BORICHA - Petitioner(s) Versus THE G.S.R.T.CORPORATION - Respondent(s) ========================================================= Appearance : MR GK RATHOD for Petitioner(s) : 1,MR MUKESH H RATHOD for Petitioner(s) : 1, MS AVANI S MEHTA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 06/08/2008 ORAL JUDGMENT In present petition, the petitioner has challenged award dated 1.5.2004 passed by the labour court, Bhavnagr in reference (LCB) No.338 of 1999 whereby, the labour court has directed the corporation to reinstate the workman. The labour court has, however, denied to grant relief of back SCA/10117/2006 2/11 JUDGMENT wages and relief of continuity of service. Actually, by the impugned award, the labour court has specifically denied the said two reliefs and has passed direction only for reinstatement. Aggrieved by the said award denying the said two reliefs present petitioner – workman has approached this court. Mr. Rathod appears for the petitioner and Ms. Mehta appears for the respondent. The facts relevant for the purpose of present petition are that, the petitioner was working as driver under the respondent corporation and before his service came to be terminated, he had put in service of about 10 years. It appears that the petitioner remained absent from 21.9.95 to 8.7.97 without prior intimation or without getting the leave sanctioned and continued to remain absent until 8.7.1997. In view of such continuous absence for such a long period, a charge sheet was served on the petitioner – workman and a departmental inquiry was SCA/10117/2006 3/11 JUDGMENT conducted. After conducting departmental inquiry and after considering the findings of the inquiry officer, the disciplinary authority passed order dated 24.2.98 dismissing the petitioner from service of the respondent corporation. Against the said order of the disciplinary authority, the petitioner preferred departmental appeal which also came to be rejected by order dated 18.5.99. Aggrieved by the said order dated 18.5.99 of the first appellate authority, the petitioner raised industrial dispute and approached labour court. The dispute culminated into reference (LCB) No.338 of 1999 and after considering the case of the appellant and the submissions of the respondent, the labour court passed award dated 1.5.2004 whereby, the labour court, though granted reinstatement, declined the relief of back wages and continuity of service. Mr. Rathod submitted that the petitioner is actually aggrieved by the denial of reliefs of back wages as well as continuity of service, however, the petitioner will be satisfied, if, atleast, the relief SCA/10117/2006 4/11 JUDGMENT of continuity of service is granted. So as to support the petitioner's request for the relief of continuity of service, Mr. Rathod relied on the judgment of the Hon'ble Apex Court in the case between Pepsu Road Transport Corporation V/s. Rawel Singh reported in [(2008) 4 SCC 42]. The petitioner, in this petition, has not produced any material or document except annexing the copy of the impugned award. The petition came to be filed in December, 2005 and since then, the petitioner has not considered it necessary to produce the record forming part of the reference (LCB) No.338 of 1999. Therefore, this court is constrained to decide the matter only on the basis of the observations recorded in the impugned award. From perusal of the award, it transpires that before the labour court, the petitioner had not challenged the legality of the inquiry. It is pertinent that in view of the continuous absence from 21.9.95 to 8.7.97, the petitioner was served with charge sheet and departmental inquiry was initiated, SCA/10117/2006 5/11 JUDGMENT however, the workman did not appear before the inquiry officer also and the inquiry had to be conducted ex-parte. As mentioned above, the petitioner has admitted the legality of the inquiry and has also admitted the findings of the inquiry officer before the labour court. Thus, the issues and findings of the learned labour court regarding justifiability of the departmental inquiry and/or corporation's decision of conducting ex-parte inquiry and/or findings of the inquiry officer are not required to be examined. It comes out from the award that the charge of continuous absence i.e. from 21.1.95 to 8.7.97 without prior leave or sanction of the higher authority was established before the inquiry officer and it has been established before the labour acourt also and it has been accepted as proved, by labour court. It is also noted by the labour court that during the period of absence, the petitioner had not SCA/10117/2006 6/11 JUDGMENT submitted any report and/or any medical certificate. Thus, it follows that the petitioner not only failed to but also did not care to give any satisfactory explanation as regards his absence even after the charge sheet was served. Even during the departmental inquiry also, he was not present and the absence continued beyond the period of charge sheet. In paragraph 7 of the impugned award, the labour court has recorded that, actually, the petitioner remained absent from 21.1.95 to 15.12.97 i.e. for almost 27 months. After having noticed that the petitioner workman had failed to submit any report explaining absence and had also not cared to produce any medical evidence while he was absent and continued his absence even after the charge sheet. The labour court was required to examine the order of penalty passed by the competent authority in light of the aforesaid facts and circumstances. Upon considering the aforesaid aspects the labour court considered it appropriate to not grant the relief of back wages and to also deny the relief of continuity of service, though the court SCA/10117/2006 7/11 JUDGMENT directed the respondent corporation to reinstate the petitioner on the ground that the penalty of termination from service was, in view of the court, harsh and disproportionate. In the facts and circumstances of the present case, it is difficult to hold that the labour court has committed any error which would justify interference by this court in exercise of the powers under Articles 226 and 227 of the Constitution of India. This court would interfere with the exercise of discretionary power under section 11-A by labour court when the power is exercised arbitrarily or without having regard to facts of the case or without total non-application of mind to the settled legal position or if the labour court has exercised the power irrationally. However, in present case, impugned award does not suffer from any such defect and Mr. Rathod has not been able to point out any finding or direction in the award which would call this court to step-in and disturb any finding or direction. SCA/10117/2006 8/11 JUDGMENT Mr. Rathod has relied on the judgment of the Hon'ble Apex Court to support the petitioner's prayer for continuity of service and not for assailing the award. Mr. Rathod appears to be conscious of the fact that in light of the facts of present case, the judgment of the Hon'ble Apex Court would not help him to assail the award. In the case before the Hon'ble Apex Court the direction of continuity of service was granted by the labour court and was confirmed by the High Court and the Hon'ble Apex Court at that stage did not consider it necessary to set aside the said direction as the absence from duty was only for few days whereas in present case the labour court has, in its direction and after examining the facts of the case and gravity of proved misconduct, declined to grant the relief of continuity of service and since in present case the undisputed period of absence from duty by a driver of state transport corporation is of 27 months no fault can be found with the decision of the court in considering the said default as serious misconduct and consequent exercise of the discretion of labour court to not grant relief of back wages and/or continuity of service to a person who is found to be so irregular, SCA/10117/2006 9/11 JUDGMENT irresponsible and indisciplined. In the case before the Hon'ble Apex Court, the direction regarding continuity was granted, and thus, the Hon'ble Court did not disturb said direction whereas in present case the labour court has not considered it appropriate to grant the relief of continuity. On the contrary the labour court has expressly denied the said relief. In the facts of the case the said denial cannot be termed arbitrary and thus, the Hon'ble Apex Court's judgment would not help the petitioner in view of the material and substantial difference in facts of present case. In view of this court the exercise of discretion by the learned labour court to deny the relief of back wages and continuity of service is neither arbitrary nor irrational nor it is in disregard to the recognized and well settled legal premise for exercising discretion. Hence, there is cause or justification to interfere with or disturb the discretion exercised by the labour court and its decision to deny the relief of back wages and continuity of service. SCA/10117/2006 10/11 JUDGMENT At this stage, it is necessary to address one identical issue. It is regarding gratuity. It transpires from the award that prior to his termination, the petitioner had put in service of 10 years. It is clear that his service was terminated on account of absentism and no notice about any loss to the corporation or for forfeiture of gratuity appears to have been issued by the corporation until now. The petitioner's service was not terminated for any riotous or disorderly conduct or for any act of violence or for an offence involving moral turpitude and that therefore, in view of this court, it would not be just or equitable to wipe out 10 years of his service so far as gratuity is concerned. Hence, it is clarified that though the relief of continuity is not granted, the petitioner shall be entitled for gratuity for the said 10 years. In the result, on overall consideration of facts and circumstances of this case, present petition is not accepted so far as the rejection or denial of relief for continuity of service and back wages is SCA/10117/2006 11/11 JUDGMENT concerned. Actually the petitioner gave-up, during the hearing of petition, the claim for back wages. In any case the said claim is not accepted by this court also and the petition is, thus, disallowed and disposed of with the aforesaid clarification. Notice discharged. No order as to costs. [K.M.Thaker, J.] kdc