SCA/28937/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 28937 of 2007 With SPECIAL CIVIL APPLICATION No. 6754 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= DIVISIONAL CONTROLLER - Petitioner(s) Versus VIRSANGJI KODARJI SOLANKI - Respondent(s) ========================================================= Appearance : MS AVANI S MEHTA for Petitioner(s) : 1, MR GK RATHOD for Respondent(s) : 1, MR MUKESH H RATHOD for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/12/2008 ORAL JUDGMENT Rule. Mr.Rathod, learned Advocate for the respondent waives service of notice of Rule. SCA/28937/2007 2/6 JUDGMENT 2. The petitioner-GSRTC has preferred the petition being Special Civil Application No.28937 of 2007 challenging the order and award passed by the learned Labour Court, Ahmedabad dated 24/11/2006 in Reference (LCIDAT) No.72 of 2006 Old Reference(LCA) No.1190 of 2004, quashing and setting aside the order of punishment of dismissal for unauthorized absentism for a period of 45 days and directing payment of 25 % of back-wages from the date of respondent's dismissal i.e. 28/06/2002 to 31/01/2005, the date on which the workman attained the age of superannuation keeping in mind the attending circumstances of the case. 3. The facts in brief deserves to be set out as under: 4. The workman concerned had remained absent from 06/02/2002 to 26/03/2002, despite a telegram was sent to resume duty by the authority as per say of the authority, he did not resume his duty and hence charge-sheet came to be issued for unauthorized absentism for the period of 45 days and inquiry was conducted and ultimately the same was culminated into order of dismissal dated 28/06/2002. The workman preferred the Departmental Appeal contending therein that on account of his serious ailment of angenia, pain, etc., the workman had to remain absent. The certificate issued by the Civil Hospital, Ahmedabad was produced. The appeal was rejected on 20/12/2003 and ultimately the workman was constrained to raise SCA/28937/2007 3/6 JUDGMENT industrial disputes before the competent Court wherein it got numbered as stated herein above. 5. The Labour Court has after considering the attending facts and circumstances of the case held that the punishment of order of dismissal was absolutely disproportionate and too harsh a penalty for such an absentism which was sought to be explained during the appeal by way of production of medical certificate. As the workman had attained the age of superannuation during the pendency of the reference on 31/01/2005, instead of ordering reinstatement ordered payment of 35 % of back wages considering it appropriate for the conduct and directed the Corporation to pay all the retiral dues as admissible under the law. 6. Being aggrieved and dissatisfied with the said order and award, the petitioner – GSRTC has preferred the petition as referred herein above challenging the same. Ms.Mehta, learned Advocate for the petitioner has contended that the workman was duty bound to take appropriate leave for remaining absent. If the workman has remained absent without intimating the authorities, he was said to have committed misconduct of absentism and therefore the workman who has a past record of one default was rightly dismissed. Despite telegram being sent to him, he did not remain present; nor did he attend the inquiry and therefore this conduct would go to show that his unauthorized absent in service oriented SCA/28937/2007 4/6 JUDGMENT organization engaged in public services, cannot brooked or continenced and therefore the order of dismissal is absolutely just, legal and proper and no interference is warranted. Alternatively, she has further submitted that if the Court is inclined to confirm the finding of the Labour Court then at least, the awarding of 35 % of back wages be quashed as that amounts to putting up premium on misconduct of unauthorized absent. 7. Shri Rathod, learned Advocate for the respondent-workman who has also preferred petition being Special Civil Application No. 6754 of 2008 has submitted that the Labour Court has passed the award in exercise of powers conferred upon it under Section 11-A of the I.D. Act and as the attending circumstances would go to show that the punishment of dismissal was indeed disproportionate to the alleged misconduct. The Labour Court has relied upon the decisions of this High Court as well as those of the Apex Court wherein the absentism of such a nature is not said to be worth awarding penalty of dismissal, as the Labour Court has taken all these factors into consideration, this Court under Article 227 of the Constitution of India may not interfere with the award impugned in the petition. 8. This Court has heard learned Advocate for both the sides and has perused the award impugned in the petitions. The fact remains to be noted that the period of absence is only 45 days; though the Court SCA/28937/2007 5/6 JUDGMENT hasten to adhere that the period of unauthorized absence is an essential factor which has a relevance with the nature of service to be discharged and the organization in question given the circumstances even unauthorized absence for few days would also assume as serious dimension. But, the Court is concerned with the award passed by the Labour Court in respect of Corporation wherein the workman i.e. conductor was said to have remained unauthorized absent for a period of 45 days and who placed on record the requisite medical certificate alongwith the memo of appeal which the appellate authority failed in appreciating the same. In these circumstances, the findings of the Labour Court needs to be viewed as to whether the same could be called perverse. The answer is emphatic 'No'. It deserves to be noted that the Labour Court has taken into consideration these circumstances and relied upon the decision of this Court as well as those of the Apex Court for coming to the conclusion that in a given case, punishment of dismissal was in-fact disproportionate and quashed and set aside the same. The exercise of discretion under Section 11- A of the I.D. Act is subject matter of scrutiny by this Court wherein this Court is of the considered view that the award impugned does not call for any interference in the interest of justice and therefore the award impugned deserves to be sustained. Thus, Special Civil Application No.28937 of 2007 preferred by the petitioner – Corporation must fail and is dismissed. However, there shall be no order as to costs. Rule SCA/28937/2007 6/6 JUDGMENT discharged. 9. As the award impugned in the matter has been held as just, legal and proper, no case is made out for enhancement also and therefore petition being Special Civil Application No.6754 of 2008 preferred the workman fails and is accordingly dismissed with no order as to costs. Rule discharged. (S.R.BRAHMBHATT, J.) sompura