Gujarat High Court
Rajkot Municipal Corporation Through ... vs Jitubhai Laxmanbhai Vaghela on 1 October, 2025
NEUTRAL CITATION
C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3215 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 65 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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RAJKOT MUNICIPAL CORPORATION THROUGH MUNICIPAL
COMMISSIONER
Versus
JITUBHAI LAXMANBHAI VAGHELA
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR DEEPAK G ALORIA(6580) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/10/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Deepak Aloria waives service of notice of Rule, on behalf on respondent No.1.
2. The present petition is filed under Articles 226 and 227 of the Constitution of India, assailing the award dated 09.07.2019 passed by the learned Labour Court, Rajkot Page 1 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined in Reference (L.C.R.) No. 82 of 2014, whereby the petitioner has been directed to reinstate the respondent with continuity of service and to pay costs amounting to ₹2,500/-.
3. It is the case of the present petitioner that the respondent was granted compassionate appointment following the death of his father, who was employed as a Safai Kamdar in the Solid Waste Management Department. Pursuant thereto, the respondent was appointed on 01.10.2005 to the post of Safai Sahayak for a period of five years on an ad hoc basis, with a fixed remuneration of ₹1,500/- per month. The terms of appointment stipulated that during the period of ad hoc service, his employment would be liable to termination without notice in the event of any irregularity being found in the discharge of his duties. It is submitted that the respondent exhibited irregularity and indiscipline in attending duties and in the performance of his assigned tasks. Consequently, notices were issued to him on 22.12.2009, 04.01.2010, and 25.07.2011. Despite such warnings, the respondent failed to improve his conduct and continued to remain undisciplined, insubordinate, Page 2 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined and was frequently absent without authorization. In view of the aforesaid conduct, his services were terminated vide order dated 08.02.2012. Aggrieved by the said termination, the respondent raised an industrial dispute, which culminated in Reference (L.C.R.) No. 82 of 2014 before the learned Labour Court, Rajkot, wherein he sought reinstatement with all consequential benefits. The learned Labour Court, after considering the evidence adduced by both parties, allowed the reference in favour of the respondent, thereby prompting the filing of the present writ petition.
4. Heard learned advocate Mr.H.S.Munshaw for the petitioner and learned advocate Mr.Deepak Aloria for the respondent.
5. Learned Advocate Mr. Munshaw submits that at the time of offering employment to the respondent on compassionate grounds, several conditions were imposed, one of which clearly stipulated that if any misconduct were committed during the five-year ad hoc period, the services of the respondent could be terminated without holding any inquiry or issuing any notice. It is submitted that the respondent remained Page 3 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined irregular in attendance and was unauthorizedly absent for prolonged periods. Despite being given several opportunities to improve his conduct, and notwithstanding the fact that he had submitted an undertaking not to remain absent without authorization, he continued to exhibit indiscipline. Consequently, his services were terminated by order dated 08.02.2012. Learned advocate Mr.Munshaw submits that the Labour Court erred in accepting the respondent's bare contention that his unauthorized absence was due to medical reasons, in the absence of any supporting medical certificate or documentary evidence. It is contended that the Labour Court failed to appreciate the various notices, reminders, and opportunities afforded to the respondent, and proceeded to grant relief in his favour without properly considering the petitioner's submissions. It is also submitted that the respondent's repeated unauthorized absence caused serious administrative difficulties to the petitioner, adversely affecting public health services, particularly in the area of solid waste management. Therefore, the impugned award deserves to be quashed and set aside, and the Page 4 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined present petition ought to be allowed in the interest of justice.
6. On the contrary, learned advocate Mr. Aloria, appearing on behalf of the respondent, though present, was unable to render effective assistance to the Court. He merely submitted that no departmental inquiry was initiated and that the impugned order of termination was passed in violation of the principles of natural justice. Accordingly, he prayed for dismissal of the present petition.
7. Upon consideration of the submissions advanced by the learned advocates for the respective parties and on perusal of the record, it emerges that the respondent was appointed on compassionate grounds in place of his deceased father as a Safai Sahayak in the Solid Waste Department of the petitioner Corporation on 01.10.2005. The said appointment was on an ad-hoc basis for a period of five years with a fixed monthly remuneration of Rs. 1,500/-. It was contended by the respondent, in the statement of claim filed before the learned Labour Court, that he had proceeded on leave in July 2011 due to illness. Despite submitting a medical certificate, a Page 5 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined show cause notice dated 25.07.2011 was issued by the Deputy Commissioner, calling upon the respondent to explain why his services should not be terminated due to prolonged unauthorized absence. The respondent is stated to have replied to the said notice on 26.07.2011; nonetheless, his services were terminated by the petitioner-Corporation.
7.1. The documentary evidence further indicates that a prior notice dated 22.12.2009 had also been issued to the respondent, pointing out that he had been on unauthorized leave since 12.05.2009 and that his continued absence had adversely impacted the sanitation work. The said notice called upon the respondent to show cause as to why disciplinary proceedings should not be initiated against him. In response, the respondent submitted a reply on 22.12.2009, admitting his unauthorized leave during the period from 12.05.2009 to 22.12.2009 and explaining that the same was due to injuries sustained in an accident. He assured the authorities that he would thereafter attend work regularly. The explanation tendered by the respondent was accepted, and by an Page 6 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined order dated 04.01.2010, the Deputy Commissioner directed the respondent to submit an undertaking, which he did by way of a letter dated 19.09.2009. 7.2. However, it is evident that the respondent again remained absent from duty from 22.03.2011 onwards. Consequently, another show cause notice dated 25.07.2011 was issued, seeking an explanation as to why his services should not be terminated for habitual absenteeism, which was stated to constitute misconduct under Section 56(2) of the Bombay Provincial Municipal Corporations Act, 1949. The said notice allegedly remained unanswered, and accordingly, an order of termination came to be passed by the Commissioner, Rajkot Municipal Corporation, on 08.02.2012. This termination was subsequently challenged by the respondent before the learned Labour Court. It was claimed in the statement of claim that a reply to the notice dated 25.07.2011 was submitted on 26.07.2011, however, no such reply was placed on record either before the Labour Court or this Court. To substantiate his claim for reinstatement, the respondent relied upon a medical certificate dated June 2009, various show Page 7 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined cause notices issued by the Corporation, and applications dated 16.05.2012 and 19.05.2013 requesting reinstatement, along with communications addressed to senior officials seeking revocation of the termination order. The respondent also produced orders in relation to other employees, namely, Manjulaben and Vitthal Vijaybhai Makwana, to demonstrate that similarly situated employees had been reinstated. However, in the opinion of this Court, such instances cannot form the sole basis for reinstatement in the absence of any satisfactory explanation for the respondent's repeated and habitual absenteeism. It is admitted that the respondent was given adequate opportunity to improve his conduct and attend work regularly. Despite having furnished an undertaking to that effect, he again absented himself for an extended period, leading to the termination of his service.
8. This Court has referred the decision rendered by the Apex Court in the case of in Vijay S. Sathé v. State of Maharashtra, reported in (2013) 10 SCC 253, wherein it was held that an employee who does not report for duty and remains absent for a prolonged Page 8 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined period cannot be considered as having been 'retrenched'. The Apex Court further observed that while initial absence may amount to misconduct, continued absence for an extended period may lead to an inference of voluntary abandonment of service. In such eventuality, the contract of employment is deemed to have come to an end automatically, without requiring any formal order of termination by the employer. The Apex Court has relied on the decision rendered in the case of Jeevanlal (1929) Ltd. v. Workmen, reported in AIR 1961 SC 1567, wherein it was held that certain classes of cases involving prolonged unauthorized absence may justifiably give rise to an inference that the employee intended to abandon service. The distinction was drawn between termination by the employer, which requires a positive act on the employer's part, and abandonment of service, which is a unilateral act by the employee, thereby eliminating the requirement for employer intervention. Consequently, such a case cannot be treated as 'retrenchment' under the Industrial Disputes Act. It was further clarified that abandonment or relinquishment of service is essentially a question of Page 9 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined intention, and such intention cannot ordinarily be attributed to an employee in the absence of adequate evidence. The only argument advanced before this Court on behalf of the respondent was that no departmental inquiry was conducted. However, reference is also made to the decisions of the Apex Court in Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association & Anr., reported in (2000) 5 SCC 65, and Aligarh Muslim University and Others Vs. Mansoor Ali Khan, reported in (2000) 7 SCC 529, wherein it was held that if an employee remains absent beyond the maximum period for which leave of any kind could be granted, he shall be deemed to have voluntarily resigned from service. In such cases, it was held that holding an inquiry or issuing a show-cause notice would be an empty formality, and hence not mandatory.
9. Having regard to the aforesaid decisions and the reasoning assigned by the learned Reference Court, this Court is of the considered opinion that the impugned award is liable to be set aside, as the relief of reinstatement has been granted solely on the ground that the respondent's services were terminated without Page 10 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025 NEUTRAL CITATION C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025 undefined holding a departmental inquiry.
10. Resultantly, Special Civil Application No. 3215 of 2020 is allowed, and Special Civil Application No. 65 of 2020 is hereby dismissed.
11. Order passed by the learned labour court at Rajkot dated 09.07.2019 is set aside.
12. Rule is made absolute in Special Civil Application No. 3215 of 2020.
13. Rule is discharged in Special Civil Application No. 65 of 2020.
(M. K. THAKKER,J) NIVYA A. NAIR Page 11 of 11 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:31:46 IST 2025