Gujarat High Court
Rajeshbhai Chandubhai Bataviya vs Commissioner,Junagadh Municipal ... on 22 January, 2025
NEUTRAL CITATION
C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3817 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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RAJESHBHAI CHANDUBHAI BATAVIYA
Versus
COMMISSIONER,JUNAGADH MUNICIPAL CORPORATION & ANR.
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Appearance:
JEET Y RAJYAGURU(8039) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 22/01/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the award passed by the learned Presiding Officer, Labour Court No.1, Junagadh in Reference (T) Case No.231 of 2004 dated 29.09.2017 whereby the reference filed by the present petitioner claiming the reinstatement in the service came to be rejected.
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NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined
2. Facts needed to be considered for the disposal of the case is that petitioner was appointed as a Junior Clerk with the Revenue Department of respondent No.1 vide office order dated 15.01.1990 on a pay scale of 950-1500 on probation period of six months, subsequently the service of the petitioner was regularized vide officer order dated 18.04.1991. On 25.02.1994 charge sheet came to be issued with allegation of remaining absent from duty unauthorisedly which was replied by the present petitioner on 01.03.1994 and thereafter, petitioner was placed on suspension from 21.05.1993 during the pendency of the inquiry on the ground of remaining absent from duty. Thereafter, service of the petitioner came to be terminated with effect from 16.01.2001. Challenging the above termination, Civil Suit came to be filed being No.540 of 1993 before the learned Civil Court, Junagadh for declaration that the suspension order dated 21.05.1993 is null and void and to declare that the action of the respondent-authority, terminating the service of the petitioner on 16.01.2001 is illegal. Thereafter, the aforesaid suits came to be withdrawn on 26.03.2003 with a liberty to file the suit in Page 2 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025 NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined future if required. Thereafter, reference was filed being Reference T case No.231 of 2004 which was rejected after analyzing the evidence which was adduced before the learned labour court vide order dated 29.09.2012, which is the subject matter of consideration before this Court.
3. Heard learned advocate Mr.Rajyaguru for the petitioner and learned advocate Mr.Munshaw for the respondent.
4. Learned advocate Mr.Rajyaguru submits that action of the respondent, in terminating the service of the petitioner without following procedure prescribed under the law or without initiating any departmental inquiry is void. Learned advocate Mr.Rajyaguru submits that though the petitioner was put under suspension, however, subsistence allowance was not paid to him for a certain period and therefore, petitioner made an application for payment of subsistence allowance which remained unattended and therefore, also impugned order deserves to be set aside.
4.1. Learned advocate Mr.Rajyaguru submits that prior to filing of reference, the notice was issued on 05.07.2004 which also remained unattended, however, without Page 3 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025 NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined considering the above aspects, learned labour court has dismissed the reference and declined the relief of reinstatement. Learned advocate Mr.Rajyaguru submits that production application which was filed below Exh.37 for producing the record from the year 1990 to 16.01.2016, also remained undecided before passing the final order. Learned advocate Mr.Rajyaguru submits that without examining the case in light of section 25(F) and 25(G), the learned court has rejected the reference and therefore, also impugned award deserves to be set aside.
5. Per Contra learned advocate Mr.Munshaw has submitted that without intimating, the petitioner herein has remained absent unauthorisedly for a period of 10 years and there was no termination, but as after revocation of the suspension order petitioner did not resume the duty and on the contrary reply was given to pay a subsistence allowance, therefore, it cannot be said that the petitioner was dismissed from the service, but he himself has abandoned from the service. Learned advocate Mr.Munshaw submits that as there is no termination, therefore, no question arises for reinstatement and for following provisions under section 25(G) and (H). Page 4 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025
NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined 5.1. Learned advocate Mr.Munshaw has relied on the documentary evidence placed before the learned labour court, more particularly Exh.52 where the order was passed to reinstate the respondent to his original post, considering the absence period as suspended period. Learned advocate Mr.Munshaw has also relied on the publication of notice produced below Exh.54 and submitted that despite having received the order dated 07.06.2000, the respondent did not resume his duty, however, he had replied on 13.06.2000 to continue the suspension period and to continue the payment of subsistence allowance. Learned advocate Mr.Munshaw submits that the copy of the charge-sheets were produced below Exh.60 and the same was provided to the petitioner below Exh.61 and the learned labour court, after considering all the materials placed has rejected the reference. Learned advocate Mr.Munshaw submits that before the learned labour court, it was admitted that no dispute was raised regarding the departmental inquiry and thereafter, all the evidences to prove the charge against the petitioner was placed on record and after examining the same in detail, learned Page 5 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025 NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined labour court declined to interfere with the dismissal order. Therefore, no interference is required and it was submitted to dismiss the petition.
6. Considering the submissions made by the learned advocates for the respective parties and perusing the records produced alongwith, it transpires that the reference came to be filed being Reference (T) No.231 of 2004 challenging the oral termination on 16.01.2001 and it was prayed to grant the relief of reinstatement. In the statement of claim, assertion was made that the petitioner was working since long on the post of Junior Clerk. However, no specific dates were mentioned in the statement of claim. The evidence below mark 36/1 which is the office order wherein, the name of the petitioner was placed at Sr.No.4 in which Nagarpalika had assured to the daily wages to reinstate them on the post of Junior Clerk, therefore, appointment on 15.09.1990 was made on the post of Junior Clerk on probation for the period of six months. During the period of probation, on 22.01.1991, the petitioner was terminated with a charge of unauthorised absence against which the petition came to be filed before this Court being SCA No.460 of 1991 Page 6 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025 NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined in which the status qua was granted by the Court, thereafter, on completion of the probation period, petitioner was appointed on regular post and in that view the petition came to be withdrawn before this Court. Service book which was produced before the learned labour court below Exh.48 as well as same is produced before this Court also, suggests that on 08.05.1992, petitioner was unauthorisedly absent for half day and on 21.05.1992 also he remained absent unauthorisedly, therefore minor penalty was impose. 6.1. Again on 21.05.1993, the suspension order was passed during the pendency of the inquiry with a charge of remaining unauthorisedly absent, thereafter, up to September 1996, 75% subsistence allowance was paid to the petitioner which was received by his brother under authority of the petitioner. On 07.06.2000, the order was passed by the respondent that there is shortage of staff and without work, the respondent has to pay the subsistence allowance, therefore, the order of revocation of suspension was passed and the petitioner was informed to resume the duty. The reply was given by the petitioner on 13.06.2000 that revocation of suspension is Page 7 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025 NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined not clear, therefore instead of revoking the suspension order, payment of subsistence allowance be paid. 6.2. Another application was filed which was received by the respondent on 14.12.2000 that the suspension order be continued and he shall be paid the subsistence allowance. Despite the publication of the notice in the newspaper, the petitioner did not resume the duty, however, he made a request to continue the payment under the head of subsistence allowance. Thereafter, further order was passed by the respondent on 16.01.2001 that after issuing the charge-sheet, disciplinary proceedings be initiated and till then, the subsistence allowance be paid continuously.
7. As per the noting made in the service book, though the petitioner was informed not to leave the headquarter and to report to mark his presence, however, he did not report and his subsistence allowance was also received by his brother under the authorization of the petitioner. This Court is of the view that at any stage, if the intimation would be given to rejoin the duty, then it is bounden duty of the workman to resume his duty to establish that he is ready to work, however, it was not Page 8 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025 NEUTRAL CITATION C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025 undefined done. In the instant case, despite he was offered the work, the publication was made in the newspaper, he remained absent and requested to pay the subsistence allowance.
7.1. Learned labour court, after considering the material came to the conclusion that the petitioner is not interested in the work, however, he is interested only in the subsistence allowance and therefore, learned labour court has declined to interfere with the order of termination as alleged by the petitioner.
8. This Court did not find any infirmity in the impugned judgment and therefore, petition being devoid of merits deserves to be dismissed.
9. Resultantly, this petition is dismissed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 9 of 9 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:37:45 IST 2025