LPA/687/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 687 of 2008 In SPECIAL CIVIL APPLICATION No. 4103 of 2005 With CIVIL APPLICATION No. 7746 of 2008 In LETTERS PATENT APPEAL No. 687 of 2008 In SPECIAL CIVIL APPLICATION No. 4103 of 2005 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT 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 civil judge ? ========================================================= AHMEDABAD MUNICIPAL TRANSPORT SERVICE - Appellant(s) Versus HARUNRASHID ABDULMATINKHAN PATHAN - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Appellant(s) : 1, MR VM DHOTRE for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 19/12/2008 ORAL JUDGMENT LPA/687/2008 2/10 JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. With the consent of the learned advocates, the Appeal is heard and decided today. This Appeal under Clause 15 of the Letters Patent has been preferred by the Ahmedabad Municipal Transport Service [hereinafter referred to as “the Transport Service”] against the judgment and order dated 7th March, 2008 passed by the learned Single Judge in above Special Civil Application No.4103 of 2005. By the impugned order, the learned Single Judge has directed the Transport Service, “to calculate the amount of pension from the day the petitioner is deemed to have retired at the rate which he was entitled to receive giving notional benefits for the payment of salary for which he is not said to have worked. Over and above the pension, they would pay interest at the rate of 15% within a period of six weeks. They would also pay the enhanced amount of gratuity, which gets enhanced by his extended LPA/687/2008 3/10 JUDGMENT service.” Learned advocate Mr. Munshaw has appeared for the Transport Service. He has submitted that since 1999, the respondent workman [hereinafter referred to as “the workman”] was dismissed from service. After the order of dismissal was set aside by the appellate authority, the respondent did not join the duty. The respondent, therefore, should not get the benefit of pension and other retiral benefits on the assumption that he continued to serve the Transport Service till he reached the age of superannuation in the year 2002. The appeal is contested by Mr. Dhotre. Mr. Dhotre has submitted that before the learned Single Judge, the respondent workman forgo his right to receive salary from the date he was dismissed from service till he reached the age of superannuation. The respondent, however, is entitled to receive full retiral benefits and interest as directed by the learned Single Judge. The workman was employed by the Transport LPA/687/2008 4/10 JUDGMENT Service as a driver. On 8th April, 1997, he refused to attend to his duty. For the said act of insubordination and indisciplined behaviour, he was suspended from service. A disciplinary inquiry was conducted against him. The guilt was held proved. Having regard to his past conduct, by order dated 16th July, 1999, he was ordered to be dismissed from service. The Transport Service also made application No.26 of 1999 for approval under Section 33(2)(b) of the Industrial Disputes Act, 1947 [hereinafter referred to as “the Act”] in the pending Reference (IT) No.433 of 1992. Pending the application for approval, the respondent preferred departmental appeal before the Transport Committee. By order dated 26th April, 2001 made by the Transport Committee, the aforesaid order of dismissal from service was set aside. The workman was ordered to be reinstated in service. The punishment of dismissal from service was substituted by punishment of withholding of annual increments for 3 years with cumulative effect. The interregnum period was ordered to be treated as leave without pay. As a consequence of the aforesaid order dated 26th April, 2001, the above referred approval LPA/687/2008 5/10 JUDGMENT application No.26 of 1999 became infructuous. Nevertheless, the said fact was not brought to the notice of the Industrial Court. Unaware of the said order, the Industrial Court, by its judgment and order dated 3rd September, 2003, rejected the said application for approval. The said order was challenged before this Court in Special Civil Application No. 1198 of 2004. By order dated 20th July, 2004 made by this Court (Coram: Mr. K.S.Jhaveri, J.) it was observed that, the above referred approval application No.26 of 1999 pending before the Industrial Court, Ahmedabad had become infructuous and ought not to have been decided on merits. Accordingly, the Court set aside the order dated 3rd September, 2003. Though the appellate committee had directed the Transport Service to reinstate the respondent in service and to substitute the punishment, the Transport Service did not implement the said direction inasmuch as the Transport Service did not make order for reinstatement of respondent in service nor did it impose punishment afresh as directed by LPA/687/2008 6/10 JUDGMENT the Transport Committee. Instead, the Transport Service insisted that the workman should first deposit the amount of terminal benefits received by him pursuant to his dismissal from service as a condition precedent. The workman agreed to deposit 50% of the amount of terminal benefits received by him and requested to recover the remaining 50% of the amount in monthly installments. The said request also was not exceeded to by the authority. The result is that neither the workman was reinstated in service, nor was the punishment substituted as directed by the Transport Committee, nor did the respondent deposit the amount of terminal benefits received by him. The workman took out the above Special Civil Application No.4103 of 2005 under Article 226 of the Constitution of India for a direction to the Transport Service to implement the order dated 26th April, 2001 made by the Transport Committee and to pay him retiral benefits with interest at the rate of 18%. The learned Single Judge has allowed the writ petition to the extent recorded hereinabove. Therefore, the present Appeal. LPA/687/2008 7/10 JUDGMENT As recorded hereinabove, the Transport Service failed to implement the appellate order made by the Transport Committee nor did it apply for approval as envisaged by Section 33(2)(b) of the Act in respect of imposition of punishment of withholding of increments. Further, the Transport Service was obliged to implement the appellate order made by the Transport Committee. The Transport Service could not have placed condition before the respondent to first deposit the terminal benefits received by him. In view of the appellate order made by the Transport Committee, the punishment of dismissal from service did not survive. In our opinion, as the Transport Service did not implement the appellate order made by the Transport Committee; as it did not apply for approval as envisaged by Section 33(2)(b) of the Act, the said order in so far as it substituted the order of punishment, did not become effective. In above view of the matter, we are of the LPA/687/2008 8/10 JUDGMENT opinion that the learned Single Judge has rightly directed the Transport Service to treat the respondent in service till he reached the age of superannuation and to pay him retiral benefits. The said direction issued by the learned Single Judge does not warrant interference. The question that now remains is that of payment of interest. It is not in dispute that until the filing of this Appeal and the order dated 15th October, 2008 made by this Court, the respondent did not make formal application for pension and other retiral benefits. In absence of formal application for pension made by the respondent, the Transport Service was not expected to process the pension papers and to determine the pension and other retiral benefits payable to the respondent. Pursuant to our order dated 15th October, 2008, the respondent made application for pension and other retiral benefits. The said application has been processed. Formal order is yet to be made. We, therefore, hold that the appellant Ahmedabad Municipal Transport Service has not delayed the process of pension papers. In absence of delay on the LPA/687/2008 9/10 JUDGMENT part of the Transport Service, the Transport Service ought not to be saddled with the liability to pay interest. For the aforesaid reasons, we allow this Appeal partly. The impugned order of the learned Single Judge dated 7th March, 2008 in so far as the appellant Ahmedabad Municipal Transport Service has been directed to pay interest at the rate of 15% over the amount of arrears of pension and other retiral benefits is set aside. The appellant Ahmedabad Municipal Transport Service will, within two weeks from today, make the formal order of payment of pension to the respondent. The arrears of pension and other retiral benefits will be paid to the respondent within 4 weeks from the date of the pension order. In the event, the appellant Transport Service fails to pay the amount of arrears of pension and other retiral benefits within 6 weeks from today, as directed, such amount will carry interest at the rate of 10% per annum from 1st February, 2009 till the date such amount is paid. LPA/687/2008 10/10 JUDGMENT The Appeal is partly allowed in the above terms. The parties will bear their own cost. Civil Application stands disposed of. [Ms. R.M.Doshit, J.] [K.M.Thaker, J.] kdc