SCA/14689/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14689 of 2007 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 ? ========================================================= DIVISIONAL CONTROLLER, G.S.R.T.C., - Petitioner(s) Versus SHRI N.K. MAKWANA - Respondent(s) ========================================================= Appearance : MS AVANI S MEHTA for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 06/08/2008 ORAL JUDGMENT 1. In this petition, the petitioner has challenged an award dated 14.8.2006, whereby the Labour Court has held that the action of terminating the SCA/14689/2007 2/10 JUDGMENT respondent was harsh and disproportionate compared tot he misconduct and on such ground, the learned Court directed the petitioner - Corporation to pay 40% back-wages from 15.10.2001 till the date of respondent's retirement i.e. 28.2.2003. The petition has been admitted by order dated 14.4.2008 and ad interim relief in terms of para 8(B) is granted. Notice as to interim relief was made returnable on 14.5.2008. Since then, the respondent has not appeared. The cause-list shows that the respondent has been served. Despite service of Notice of Rule, he has not entered appearance. 2. This Court passed an order on 11.7.2008 taking note of the respondent's absence and then order dated 31.7.2008 was also passed. The matter was adjourned to 4.8.2008 with a view to give another chance to the respondent. On 4.8.2008, the respondent did not appear and the petition came to be adjourned to today. Today also, the respondent has not remained present. Under the circumstances, this Court is constrained to decide the matter in absence of the respondent. SCA/14689/2007 3/10 JUDGMENT 3. Ms. Mehta, learned advocate appears for the petitioner. She submitted at the relevant time, the respondent was working as a Driver. She further submitted that the respondent, without prior intimation or without prior sanction, started remaining absent from 4.8.1996 and continued to remain absent till 21.8.1996 and that therefore, a charge-sheet dated 24.8.1996 was issued. It appears that pursuant to the said charge-sheet, departmental inquiry was conducted and thereafter, an order dated 15.3.1997 came to be passed, whereby the respondent was dismissed from service. 4. She also submitted that even after the termination order, the respondent did not take any action for almost five years and it was after delay of five years, the respondent raised industrial dispute, which came to be referred in January, 2002. 5. She further submitted that the petitioner - Corporation placed on record of the Labour Court the relevant material/documents including respondent's default card (Exhibit 26) through which it was demonstrated that there were as many as 12 defaults SCA/14689/2007 4/10 JUDGMENT recorded in respondent's default card out of which 11 default are of unauthorized absent. She submitted that the petitioner Corporation accordingly established before the Labour Court that the respondent was in a habit of remaining absent and that therefore, there was no justification to grant relief of reinstatement in favour of such person. She submitted that the Labour Court further did not accept the submission of the petitioner Corporation and concluded that the respondent was entitled for reinstatement because in view of the Labour Court, the punishment imposed by the petitioner - Corporation was harsh and disproportionate to the misconduct. She submitted that since the respondent has crossed the age of superannuation in the interregnum, the Labour Court, after holding that the respondent was entitled for reinstatement, has directed the Corporation to pay all the benefits including 40% back-wages and retiral benefits until the date when he crossed the age of superannuation w.e.f. 28.4.2003. She submitted that the award of the Labour Court is unjustified and unsustainable in the eye of law. She submitted that the finding of the SCA/14689/2007 5/10 JUDGMENT Labour Court that the penalty was harsh and disproportionate is unjustified and in disregard to the gravity of misconduct and respondent's past record and that the award has been passed in total disregard to the evidence on record more particularly, in light of the fact that the respondent had raised industrial dispute after delay of five years. 6. It appears from the discussion in award that the Labour Court has accepted the findings of the Inquiry Officer. In other words, the Labour Court has not found any error in conclusion of the Inquiry Officer that the charge levelled against the respondent was proved. The Labour Court appears to have taken into account the certificate issued by Dr. Mahendra L. Goswami, B.H.M.S., Gambhoi certified that Mr. N.K. Makwana i.e. the respondent was down with fever from 5.8.1996 to 21.8.1996. The certificate appears to be issued on 31.8.1996. It appears that after the said absence, when the respondent tried to report for duty, he belatedly submitted the said certificate. Without going into veracity of the said certificate, it becomes clear that during the period between SCA/14689/2007 6/10 JUDGMENT 4.8.1996 to 21.8.1996, the respondent never informed the petitioner Corporation about his said illness and also did not explain his absence. The Labour Court has interfered with the order on the ground that the order passed by the Disciplinary Authority is harsh and the punishment is disproportionate as against the misconduct. It is pertinent that the Labour Court has considered the penalty imposed on the respondent as harsh and disproportionate, despite the fact that the petitioner established before it that in past the respondent had remained absent on 11 occasions i.e. he was in habit of remaining absent. The defence of the petitioner - Corporation before the Labour Court was that the certificate was not proved and there was no justification about the respondent's misconduct of remaining absent without intimation and to continue to remain absent without getting leave sanctioned. The respondent has not been able to show before the Labour Court that during the period of absence, he had informed the petitioner Corporation about the reason of his absence. On behalf of the petitioner Corporation, it was also submitted that before approaching the Labour Court and that too, after a SCA/14689/2007 7/10 JUDGMENT delay of almost five years, the respondent had neither approached the Corporation nor preferred departmental proceeding. In view of this Court, the conclusion of the Labour Court regarding penalty is unjustified and unsustainable in the facts of present case. The Labour Court is not justified in weighing the penalty order in golden scales and/or to judge its propriety by its standard. Above all the labour Court ought to have considered that in the past also, the respondent exhibited the trait of remaining absent without prior intimation or sanction and that the default card contained 11 instances of similar misconduct and in that background, the action of the employer cannot be said to be harsh or shockingly disproportionate. 7. From perusal of the award, it appears that the Labour court has not recorded any finding and reasons with regard to the decision for awarding 40% of back- wages. It also transpires that while finalizing the direction regarding back-wages, the Labour Court either ignored and arbitrarily brushed aside or lost sight of all the relevant aspects necessary to be SCA/14689/2007 8/10 JUDGMENT taken into account while deciding the issue of back wages e.g. the past service record, the nature and gravity of misconduct, petitioner's “pre-misconduct” and “post-misconduct”, conduct, length of service, attempt to secure employment, the reason/ground for interfering with employer's decision and action and direction for reinstatement etc. The Labour court also has not been mindful of the legal position settled by the Hon'ble Apex Court that direction granting back-wages should not automatically follow the direction granting reinstatement. Despite the concern expressed by the Hon'ble Apex Court regarding the common practice of mechanically and automatically granting back-wages, the Labour Court has in present case, granted 40% of back-wages without recording the reasons for such direction. In the present case the Labour Court should have taken the aforesaid aspects into account and should have also considered that (a) the respondent had not even replied the charge-sheet (b)before the Labour Court, the legality of inquiry was also admitted as it did not suffer from any infirmity (c) the departmental appeal was not preferred and (d) the respondent had raised dispute SCA/14689/2007 9/10 JUDGMENT after delay of almost 5 years under the circumstances, the impugned direction is not justified. The Labur court has failed to record reason and justification for the said direction. 8. It is pertinent that the Labour Court, as noticed earlier, has recorded clear findings that the misconduct of remaining absent without permission or without intimation, is proved. Thus, when the inquiry proceedings were not challenged and when the findings of Inquiry Officer were accepted by the Labour Court and the Labour Court independently recorded its conclusion that the charges levelled against the respondent were proved, then there was no justification for granting back-wages. Thus, the direction granting 40% of back-wages for the period from 15.10.2001 to 28.2.2003 deserves to be set aside and it is hereby set aside. However, in view of the fact that during the period of absence, respondent's mother died and also considering the fact that the respondent reached age of superannuation during the proceedings before the Labour Court, the direction regarding payment of retiral benefit is not interfered with and that therefore, the respondent SCA/14689/2007 10/10 JUDGMENT shall be entitled for the payment, in accordance with the applicable rules, of retiral benefits. This Court has not interfered with the said direction considering the fact that the misconduct of respondent was not in nature of moral turpitude which may deprive him of benefits like gratuity. Thus, with a view that the respondent's past service may not be wipied out and he may not be deprived of benefit as per applicable Rules, the said direction is not disturbed. It is however, clarified that only those benefits which would have been otherwise payable shall have to be paid and the payment to be made subject to and in accordance with applicable Rules. 9. With the aforesaid observation and clarifications, the petition is disposed. Rule is discharged. Ad interim relief granted earlier, stands vacated forthwith. (K.M.THAKER, J.) ynvyas