SCA/644620/2002 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6446 of 2002 With SPECIAL CIVIL APPLICATION No. 8652 of 2002 With SPECIAL CIVIL APPLICATION No. 1374 of 2005 With CIVIL APPLICATION No. 5214 of 2004 In SPECIAL CIVIL APPLICATION No. 6446 of 2002 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 ? ================================================= GUJARAT STATE ROAD TRANSPORT CORPORATION - Petitioner Versus HASMUKHBHAI DAYALJIBHAI RATHOD - Respondent ================================================= Appearance : MR ASHISH M DAGLI for Petitioner : MR PRABHAKAR UPADYAY for Respondent : ================================================= CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 17/11/2008 COMMON ORAL JUDGMENT: 1. Heard learned counsels for the parties. These three matters were required to be heard together as the SCA/644620/2002 2/9 JUDGMENT parties are same and question of payment of gratuity is involved so far as Special Civil Application No. 6446 of 2002 and Special Civil Application No. 8652 of 2002 are concerned. Whereas Special Civil Application No. 1374 of 2005 is concerned order dated 17/1/2004 of the second appellate authority is under challenge by the workman so far it does not grant back wages for the period to which he has retained in job and other monetary benefits. 2. Facts in brief deserves to be set out as under. The respondent workman (hereinafter referred to as the 'wrokman' for the sake of convenience in this judgment) received charge sheet on the basis of the complaint made by an aspirant for employment in State Transport Corporation, that an amount of Rs.23,000/- was taken as illegal gratification for procurement of employment and as that candidate was not employed he made complaint. On that basis the complaint departmental inquiry was conducted and it culminated into ultimate order of dismissal dated 2/6/1997. It deserves to be noted at this stage that the respondent workman, if not terminated and dismissed, then, would have retired on attaining the age of superannuation on 31/3/1999. The ST Corporation as per the prevalent rules passed on retiral benefits despite the dismissal order in accordance with the prevailing rules, on obtaining an undertaking from the workman that he would not prefer any first appeal, second appeal or would not challenge the order of dismissal in any forum. The written undertaking as SCA/644620/2002 3/9 JUDGMENT prescribed was furnished by the employee workman on 16/6/1997 and on that basis he received gratuity amount as admissible to him as if he had been dismissed from service on 2/6/1997. 3. The respondent workman preferred Special Civil Application No. 2640 of 1998 wherein this Court (Coram: Ms. R.M. Doshit, J) on 11/3/1999 was pleased to pass the following order: “ Heard the learned advocates for the respective parties. Mr. Rathod, the learned advocate appearing for the petitioner agrees that a statutory remedy of appeal against the order of dismissal is available to the petitioner herein. However, with a view to receiving the amount of Provident Fund and Gratuity, the petitioner had to give an undertaking to the respondent Corporation to the effect that he would not challenge the order of dismissal and he, therefore, can not prefer appeal before the appellate authority. Mr. Lakhani, the learned advocate for the Corporation contests the petition. He submits that all the delinquent employees are required to inform the concerned authority about the pendency of the appeal and it is merely a declaration that was required to be filed along with the application for remittance of the amount of the Provident Fund and the gratuity. He further states that the undertaking given by the petitioner on 16th June, 1997 shall not debar the petitioner from exercising his right to appeal against the impugned order. In that view of the matter, petition under Article 226 of the Constitution of India can not be entertained. The petitioner shall avail of the statutory remedy of appeal. It is directed that the appellate authority shall decide the appeal in accordance with law without being affected by the undertaking/declaration dated 16th June, 1997. SCA/644620/2002 4/9 JUDGMENT Petition is accordingly disposed of. Notice is discharged. “ 4. Thus the workman was directed to avail statutory remedy of appeal and the appellate authority of ST Corporation was directed to decide the appeal according to law without being affected by the undertaking / declaration dated 16/6/1997. 5. Pursuant to the aforesaid order of this Court, the workman preferred appeal as provided under the rules before the first appellate authority of the Corporation which came to be partly allowed after elaborate discussions vide order dated 26/3/2000. The appellate authority has recorded its finding and while allowing the appeal observed that as the workman had passed the age of superannuation i.e. 31/3/1999 there is no question of now ordering reinstatement. However keep in mind the long tenure of service and taking sympathetic view of the entire matter so as to enable the respondent workman to receive the benefits of retirement, he ordered modification in the punishment order and observed that he has to be treated as if he was continuously serving from the date of his dismissal till he attained the age of retirement i.e. 31/3/1999 and the period from 2/6/1997 till 31/3/1999 he was treated on leave without pay and would not be entitled for any monetary benefit for that period. Based upon this order and the fact that in the interregnum period one wage revision has been effected his notional salary was fixed and order of payment of SCA/644620/2002 5/9 JUDGMENT gratuity was ordered. As the workman concerned being aggrieved by the said order moved Controlling Authority with appropriate application which came to be partly allowed and the said order of controlling authority came to be ultimately allowed and the said order of controlling authority made in Application No. 4/2000 was challenged by the Corporation by preferring Appeal No. 41 of 2001. This order was also challenged by the workman by preferring appeal No. 49 of 2001. The appellate authority under gratuity allowed the appeal of respondent workman being Appeal No. 49 of 2001 and dismissed Appeal No.41 of 2001 of the Corporation. 6. The Corporation preferred two petitions namely Special Civil Application No. 6446 of 2002 challenging the award of appellate authority, so far it dismissed their appeal against the order of controlling authority. Special Civil Application No. 8652 of 2002 is filed so far it allowing the appeal preferred by the respondent workman being appeal No. 49 of 2000. As it is stated herein above workman did prefer Special Civil Application No. 1374 of 2005 challenging the appellate authority order where under back wages was denied to him. 7. Shri Nirav Sanghvi for Mr. Dagli for the Corporation submitted that the order of the appellate authority was absolutely clear and as per that order no monetary benefits were admissible to the employee for the period from the date of his dismissal to that of his superannuation and therefore the controlling authority SCA/644620/2002 6/9 JUDGMENT as well as the second appellate authority were not justified in allowing the amount of gratuity on the basis as if the workman had retired on 31/3/1999. Heavy reliance is placed upon the order of the first appellate authority dated 26/3/2000 which in turn has been confirmed by the second appellate authority of the Corporation. The submission was made that as there was specific denial of any monetary benefits for the period from 2/6/1997 to 31/3/1999 no benefit including that of gratuity could have been admissible and the benefit of revision of wages came to be effected only after the date of termination i.e. 2/6/1997 could not have been admissible to the employee concerned. 8. Shri Upadhyay for the respondent workman submitted that the appellate authority's order itself is clear enough to indicate that the workman was entitled to other benefits admissible for retirement. Had that not been the case then the appellate authority could have worded the order accordingly. Shri Upadhyay however could not make out any case for seeking back wages challenging the order of the appellate authority in Special Civil Application No. 1374 of 2005. Shri Upadhyay could not effectively make any submission as to why the order of appellate authority should be undone and the award should be granted. On the contrary relying upon this order the benefit of retirement, gratuity etc. have been availed and therefore on this count also Shri Upadhyay's submission with regard to non granting of back wages could not be justified. SCA/644620/2002 7/9 JUDGMENT 9. This Court heard learned counsels for the parties and perused the impugned orders. The submission of Shri Sanghvi for GSRTC did not appeal to this Court as the close reading of the order of the first appellate authority would in itself go to show that the glossing over sought to be placed upon the said order by the petitioner Corporation is absolutely unwarranted and uncalled for and the authorities have therefore rightly rejected the same. There is no purpose shown for treating the respondent employee continuous in service after the date of his dismissal ie.. 2/6/1997. In fact the immediate paragraph preceding the paragraph of the effective order go to show that the first appellate authority did consider it to be appropriate in a given facts & circumstances of the case to award and grant all the benefits which would be admissible and accrue to the workman on his retirement on regular basis as if no dismissal order had ever been passed, and he was retired on attaining age of superannuation i.e. 31/3/1999. Had it not been the intention on the part of the first appellate authority then the first appellate authority could have in unequivocal terms specifically mentioned that no benefits including that of gratuity and retiral benefits would be payable to the workman. The reading of the entire order go to show that the intention of the order of the authority was contrary to what is being sought to be interpreted by the counsel of the Corporation before the authorities and this Court as well. The fact remains to be noted that even if the workman had not moved any authority including this Court after his dismissal on 2/6/1997 as per the rules SCA/644620/2002 8/9 JUDGMENT prevalent he had already been given gratuity amount on his furnishing an undertaking that he had not filed any other appeal nor has he challenged the order in question. That being the situation the appellate authorities orders permitting him to be in continuous in service and treating said period as if the period without leave / pay and permitted him to be treated as if he retired on 31/3/1999 i,e,. the date on which he would have retired had he not been dismissed after the impugned order, that in itself would go to show that the first appellate authority did intend to pass over benefits of retiral dues to the employee concerned. Therefore the interpretation sought to be canvassed is not borne out or plausible from the reading of the order placed into service. Moreover it deserves to be noted at this stage that the order referred to non payment of monetary benefit is qua the period for which the employee in fact did not perform his duties. The Corporation cannot stretch this wording so as to mean that even retirement dues were to be curtailed as can be seen from the intention of the authority from the foregoing paragraph preceding the paragraph of effective order. This Court is therefore of the considered view that the findings of the appellate authority assailed in this petitions being Special Civil Application No. 6446 of 2002 and Special Civil Application No. 8652 of 2002 can not be said to be in any way contrary to law so as to warrant any interference under Article 227 of the Constitution of India. As it is already stated herein above, Shri Upadhyay could not point out any reason for interfering with the order of the appellate authority, hence that SCA/644620/2002 9/9 JUDGMENT petition being Special Civil Application No. 1374 of 2005 is also required to be dismissed and is accordingly dismissed. 10.In the result all the 3 petitions are dismissed. Rule discharged in all the petitions. Interim relief granted in Special Civil Application No. 6446 of 2002 stands vacated. However there shall be no order as to costs in each of the petitions. 11. In view of the order passed in above said Special Civil Applications, no order is passed in Civil Application No. 5214 of 2004 and the same is rejected. [ S.R. BRAHMBHATT, J ] /vgn