Gujarat High Court
Municipal Commissioner , Ahmedabad ... vs Dhandhar Nagjibhai Zanzarbhai on 4 August, 2025
NEUTRAL CITATION
C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9501 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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MUNICIPAL COMMISSIONER , AHMEDABAD MUNICIPAL CORPORATION
& ANR.
Versus
DHANDHAR NAGJIBHAI ZANZARBHAI
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Appearance:
MR HAMESH C NAIDU(5335) for the Petitioner(s) No. 1,2
IG JOSHI(8726) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/08/2025
ORAL JUDGMENT
1. Upon consent of both parties, the matter was taken up for final hearing.
2. Rule returnable forthwith. Learned advocate Mr.I.G.Joshi waives notice of Rule on behalf of respondent.
3. The present petition is filed under Articles 226 and 227 of the Constitution of India, challenging the award dated 29.11.2024 passed by the learned Labour Court, Ahmedabad in Reference (T) No. 407 of 2013, whereby Page 1 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined the learned Labour Court directed the present petitioner to reinstate the respondent with 25% back wages, and further observed that continuity of service shall be counted for the purpose of extending terminal benefits.
4. It is the case of the present petitioner that the respondent was appointed as a Teacher on 01.07.1996 and continued in service until his termination on 05.09.2011. The respondent proceeded on medical leave on 02.12.2008. As on 17.02.2009, his leave balance was one month and six days. Accordingly, for the period from 02.12.2008 to 19.12.2008 (i.e., 18 days), the respondent was treated as being on commuted leave, and from 20.12.2008 onwards, his leave was treated as leave without pay. The respondent was directed to appear before the Medical Board of Sheth V.S. Hospital on 05.01.2009 for obtaining a fitness certificate. Although he appeared on the said date, he did not possess the required certificate, and was therefore instructed to appear again with the same. Thereafter, he was informed to remain present before the Medical Board on multiple dates, namely 20.03.2009, 13.04.2009, 07.05.2009, 20.05.2009, and 04.06.2009. Despite Page 2 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined receiving all the communications, the respondent failed to remain present before the Medical Board. In view of the respondent's conduct, a chargesheet was issued on 11.08.2009. Though the chargesheet was duly served, the respondent failed to submit any response thereto. A departmental inquiry was initiated by the petitioner, and the first hearing was scheduled on 08.09.2009. Despite being duly informed, the respondent failed to participate in the inquiry proceedings. The inquiry had to be deferred on multiple occasions due to the respondent's continued absence, specifically on 17.09.2009, 30.09.2009, 29.10.2009, 13.11.2009, 23.12.2009, 07.01.2010, 21.01.2010, and 28.01.2010. On each of these dates, the respondent chose not to remain present before the Inquiry Officer. Ultimately, based on the findings of the departmental inquiry, which held the charges against the respondent to be proved, and considering the gravity of the misconduct, an order of termination was passed on 05.09.2011. The respondent preferred a departmental appeal against the order of termination, which came to be rejected by the Appellate Authority vide order dated 22.02.2012. Challenging the Page 3 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined said order, the reference came to be filed before the learned labour court, Ahmedabad which was registered being Reference (T) No.407 of 2013. Upon considering the statement of claim, written statement filed by the petitioner, and the evidence adduced by both parties, the learned Labour Court exercised its powers under Section 11(A) of the Industrial Disputes Act, 1947, and substituted the penalty of termination with reinstatement along with 25% back wages. The said award is the subject matter of challenge before this Court.
5. Heard learned advocate Mr.Hamesh Naidu for the petitioner and learned advocate Mr.I.G.Joshi for the respondent
6. Learned advocate Mr.Naidu submits that learned labour court has committed an error in interfering with the punishment awarded by the department by holding that the punishment is excessive to the charges. Learned advocate Mr.Naidu submits that though legality and validity of the departmental inquiry remained intact and findings were also not recorded perverse, the learned labour court by misreading the documentary evidence Page 4 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined has substituted the punishment imposed by the petitioner. Learned advocate Mr.Naidu submits that although several opportunities were granted to the respondent to appear before the Medical Board for obtaining a fitness certificate, the respondent, despite being duly served with communications, failed to appear before the Board on the scheduled dates. Contrary to this factual position, the learned labour court recorded a finding that the respondent had regularly appeared before the Medical Board and had obtained the requisite certificate. Learned advocate Mr.Naidu submits that papers of two prior departmental inquiries against the respondent were placed on record. However, the Labour Court, overlooking these material facts, incorrectly recorded that the respondent's past service record was unblemished. In that background also impugned award deserves to be interfered with. Learned advocate Mr.Naidu submits that power under section 11(A) of the I.D.Act should be exercised judicially rather than exercising the same in a liberal manner. However, learned reference court, without assigning any cogent reasons has set aside the order of punishment and Page 5 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined directed the present petitioner to reinstate the respondent with 25% back wages, therefore, the impugned award be set aside and the petition be allowed.
7. Per contra, learned Advocate Mr. Joshi, appearing for the respondent, submits that the record clearly indicates that the respondent appeared before the Medical Board on 05.01.2009, but no fitness certificate was issued to him on that date. It is further submitted that the Labour Court recorded its findings after a detailed scrutiny of the evidence placed on record, and in that background, no error was committed by the learned Labour Court in substituting the punishment. Hence, the petition deserves to be dismissed, and the impugned award deserves to be upheld.
8. Having considered the submissions advanced by the learned advocates for the respective parties and upon perusal of the record and proceedings placed before this Court, it clearly emerges that the respondent was appointed as a Teacher on 01.07.1996 and had proceeded on medical leave from 02.12.2008. As per the official leave records, the respondent had a leave Page 6 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined balance of one month and six days, and accordingly, the period from 02.12.2008 to 19.12.2008 was treated as commuted leave, while the period from 20.12.2008 onwards was considered as leave without pay. The respondent was informed to remain present before the Medical Board, i.e., Sheth V.S. Hospital, on 05.01.2009 for obtaining a fitness certificate. However, although the respondent did remain present on 05.01.2009, the record suggests that he appeared without the necessary medical reports. Therefore, he was called upon to appear with the requisite reports on 20.03.2009, 07.04.2009, 13.04.2009, and 28.05.2009. The correspondence on record clearly reflects that, despite repeated opportunities, the respondent neither obtained nor produced a fitness certificate and remained on leave. In view of the said misconduct, a departmental inquiry was initiated against the respondent. It is evident from the record that the respondent did not participate in the inquiry proceedings at any stage. Consequently, an order of termination came to be passed by the Deputy Municipal Commissioner on 05.09.2011. It is an undisputed fact that the said order was challenged Page 7 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined before the First Appellate Authority, and the first appeal came to be rejected. Before the learned Labour Court, the legality and validity of the departmental inquiry as well as the findings remained unchallenged. Upon examination of the reasons assigned by the learned Labour Court in the impugned award, it emerges that the Labour Court interfered with the punishment of termination on the following three grounds i.e. (1) past records of the respondent is unblemished; (2) long service and (3) the report is produced before the learned labour court to substantiate that the fitness certificate is obtained.
8.1. As far as the first ground is concerned, this Court finds that the Labour Court erred in concluding that the respondent's past service was unblemished. The record clearly discloses that two prior departmental inquiries were conducted against the respondent which resulted in penalties. Specifically, on 12.11.2002, a penalty of withholding three increments with future effect was imposed, and on 07.05.2007, a penalty of withholding one increment with future effect was imposed. These disciplinary proceedings were part of the record, yet Page 8 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined were wrongly discarded by the Labour Court while arriving at the conclusion that the respondent's past record was clean.
8.2. Second ground on which the learned court has interfered with the punishment was long service. It emerges from the record that during these period of service various irregularities were reported which is the part of the record below Exh.20 to 26. From the above evidence, it emerges that the service of the present respondent was not satisfactory and on that ground also reasons recorded by the learned labour court appears to be perverse.
8.3. The third ground on which the Labour Court interfered with the punishment was the alleged production of a fitness certificate. However, a perusal of the various communications addressed to the respondent suggests that he remained present only once
--on 05.01.2009. Thereafter, although he was repeatedly informed to appear, he did not comply and did not procure the fitness certificate. During cross- examination, the respondent admitted that he appeared before the Medical Board on 05.01.2009 without any Page 9 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined reports. He further admitted that although he was informed to remain present on subsequent dates, he did not appear and did not produce any fitness certificate. In that background also, in the opinion of this Court, learned court has committed grave error in exercising the power under section 11(A) of the I.D.Act.
9. At this stage, this Court has referred the decision rendered by the Apex Court in the case of L And T Komatsu Ltd Versus N Udaykumar reported in 2007 LawSuit(SC) 1518. The relevant paragraphs of the said judgment is reproduced hereinbelow:-
"3. Learned Single Judge noted that there were proved cases of misconduct of unauthorized absentism for 15 times but the workman had not improved his conduct. Notwithstanding this finding, learned Single Judge held that at the relevant point of time the workman was not well and was taking treatment at St. Martha Hospital. Accordingly it was held that the order of termination is harsh under the facts and circumstances of the case but looking into the past history directed reinstatement without continuity of service and without back wages. By the impugned order the Division Bench allowed the appeal filed by the respondent while dismissing the appeal filed by the present appellant.
5. It is submitted that habitual absentism is gross violation of discipline. It is also submitted that the parameters for the exercise of Section 11A of the Act have not been kept in view by the Page 10 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025 NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined Labour Court and the High Court.
6. In response, learned counsel for the respondent submitted that because of personal problems there was unintentional absence and that should not have been seriously viewed. The reply to the second show cause notice on which the emphasis is laid by the appellant to contend that respondent had admitted his guilt was taken under coercion. It is also submitted that the discretion for exercise of jurisdiction under Section 11A has been rightly exercised."
10. In the considered opinion of this Court, unauthorised absence is an indiscipline and where the employee does not offer any satisfactory explanation, the employer takes recourse of disciplinary action which may lead to the extreme penalty of dismissal or removal from the service. Therefore, this Court is of the view that the learned Labour Court, without assigning cogent reasons, has passed the impugned award directing the present petitioner to reinstate the respondent with 25% back wages. Hence, this petition deserves to be allowed.
11. Resultantly, this petition is allowed and the award dated 29.11.2024 passed by the learned Labour Court, Ahmedabad in Reference (T) No. 407 of 2013 is set aside.
12. Rule made absolute.
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NEUTRAL CITATION C/SCA/9501/2025 JUDGMENT DATED: 04/08/2025 undefined
13. Record and proceedings be sent back to the concerned court.
(M. K. THAKKER,J) NIVYA A. NAIR Page 12 of 12 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:43:47 IST 2025