Gujarat High Court

Divisional Controller vs Jumabhai Umarbhai Gunga on 1 March, 2021

Bench: A.G.Uraizee

     C/SCA/13235/2020                                               JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


          R/SPECIAL CIVIL APPLICATION NO.           13235 of 2020



FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.G.URAIZEE                                   Sd/-
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1     Whether Reporters of Local Papers may be allowed                 Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          DIVISIONAL CONTROLLER
                                   Versus
                        JUMABHAI UMARBHAI GUNGA
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Appearance:
MR HAMESH C NAIDU(5335) for the Petitioner(s) No. 1
NIYATI D CHAUHAN(9082) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE

                           Date : 01/03 / 2 0 2 1


                            ORAL JUDGMENT

1. Rule returnable forthwith. Ms. Niyati D. Chauhan,

learned advocate waives service of rule for the respondent.

C/SCA/13235/2020 JUDGMENT

2. Heard Mr. Hamesh C. Naidu, learned advocate for the

petitioner and Ms. Niyati D. Chauhan, learned advocate for

the respondent. With consent of learned advocates

appearing for either side, the petition is taken up for final

disposal today as the issue involve lies in a narrow

compass.

3. In this petition under Articles 226 and 227 of the

Constitution of India, the petitioner has assailed the order

dated 17.1.2020 passed by the Industrial Tribunal, Rajkot

in Reference (I.T.) No. 48 of 2018.

4. The facts giving rise to present petition as could be

gathered from the memo of the petition and connected

material are that the respondent was working as driver with

the petitioner corporation. He remained absent

unauthorizedly from 14.1.1997 to 14.5.1998 without prior

permission or intimation. The respondent was therefore,

chargesheeted on 15.9.1998 and after conducting

departmental inquiry, he came to be dismissed from service.

The respondent challenged dismissal order before the

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Labour Court, Rajkot by preferring Reference (L.C.R.) No.

156 of 2002. The said reference was partly allowed by award

dated 18.4.2007 and the petitioner was directed to reinstate

the respondent without consequential benefits or continuity

of service. The petitioner assailed said award by filing

Special Civil Application No. 27408 of 2007 and by order

dated 6.12.2012 the said petition was allowed and the order

of reinstatement passed by the Labour Court was confirmed

and penalty of stoppage of one increment without future

effect was imposed upon the respondent.

5. Thereafter, by order dated 27.6.2013 the respondent

was reinstated in service and the notional pay fixation was

fixed accordingly. The respondent, after resuming service

upon reinstatement and fixation of notional pay, about 5

years thereafter, preferred Reference (I.T.) No. 48 of 2018

before the Industrial Tribunal, Rajkot claiming pay revision,

increment and pay grade for the period from 15.12.1993 to

18.4.2017. The Industrial Tribunal, Rajkot by impugned

order dated 17.1.2020 partially allowed the reference of the

respondent whereunder the petitioner was directed to

undertake the pay fixation of the respondent for the period

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from 15.12.1993 to 18.4.2017. Being aggrieved, the

petitioner has preferred present petition to assail the

impugned order dated 17.1.2020 passed by the Industrial

Tribunal, Rajkot in Reference (I.T.) No. 48 of 2018.

6. Mr. Naidu, learned advocate for the petitioner submits

that it is abundantly clear from the award of the Labour

Court passed in Reference (L.C.R.) No. 156 of 2002 that the

respondent was reinstated in service as driver without

backwages and continuity of service. He further submits

that it is also undisputed fact that the petitioner challenged

award of the Labour Court in the High Court by preferring

Special Civil Application No.27408 of 2007 and this Court

was pleased to partly allow the petition and while

confirming reinstatement of the respondent, imposed

punishment of stoppage of one increment without future

effect on the respondent. He submits that when the

respondent was directed to be reinstated in service without

consequential benefits, the petitioner has given benefit of

increment notionally for fixation of pay of the respondent.

6.1 Relying upon the decisions in cases of Andhra Pradesh

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State Road Transport Corporation, Hyderabad Vs. S.

Narsagoud, reported in 2003 (2) SCC 212, Andhra Pradesh

State Road Transport Corporation (APSRTC) Vs. Abdul

Kareem, reported in 2005 (6) SCC 36 and Nand Kishore

Shravan Ahirrao Vs. Kosan Industries (P) Ltd. reported in

2020 LawSuit (SC) 46, learned advocate for the petitioner

submits that the Tribunal has committed serious error in

allowing the reference and directing the petitioner to revise

the pay and pay arrears accordingly. He, therefore, urges

that this petition may be allowed and impugned order may

be set aside.

7. Ms. Niyati Chauhan, learned advocate for the

respondent supported impugned order of the Tribunal. She

submits that the Tribunal has passed impugned order on

the basis of various decisions of the Supreme Court and this

Court. It is her further submission that the Tribunal has

also recorded finding that there is no delay in preferring the

reference as all along the respondent was pursuing his case

with the petitioner by making repeated representations.

She, therefore, submits that the order impugned does not

suffer from any illegality warranting interference in this

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petition. She, therefore, urges that the petition may be

dismissed with cost.

8. I have given my thoughtful consideration to the rival

submissions.

9. The uncontroverted facts as could be gathered from

the material made available in the petition are that:-

(A) The respondent joined the petitioner corporation

as driver on 26.12.1992 and was made

permanent on 15.12.1993.

(B) The respondent remained absent from 14.1.1997

to 14.5.1998 without any prior permission or

intimation.

(C) The respondent was departmentally proceeded

with for remaining unauthorizedly absent vide

chargesheet dated 19.5.1998. The respondent did

not participate in the inquiry, as a result of which

his services were terminated.

(D) The respondent challenged his termination by

filing Reference (L.C.R.) No.156 of 2002 in the

Labour Court, Rajkot which came to be partly

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allowed by the Labour Court, Rajkot.

(E) The respondent was directed to be reinstated

without backwages.

(F) The petitioner challenged award of the Labour

Court, Rajkot by filing Special Civil Application

No.27408 of 2007. This Court vide judgement

dated 6.12.2012 confirmed the order of

reinstatement. However, penalty of stoppage of

one increment without future effect was imposed

upon the respondent. The said petition was

accordingly partly allowed and the respondent

was reinstated in service and the notional pay

fixation was done accordingly by the petitioner.

10. The respondent, thereafter, about period of 4 to 5 years,

preferred Reference (I.T.) No.48 of 2018 in the Industrial

Tribunal, Rajkot for re-fixation of the pay after including

increment and for payment of arrears. The reference was

partly allowed by the Industrial Tribunal vide impugned

order dated 17.1.2020 and the petitioner was directed to re-

fix the pay after considering the increment and to pay

arrears accordingly.

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10.1 It is thus, abundantly clear from the aforestated

admitted chronology that the petitioner was ordered to be

reinstated in service by order dated 18.4.2007 without

backwages and this order was confirmed by this Court

however, penalty of stoppage of one increment was imposed

on respondent.

11. The Supreme Court in case of Andhra Pradesh State

Road Transport Corporation, Hyderabad Vs. S. Narsagoud,

(supra) has held as under:-

"[10] The Regulations referred to hereinabove clearly spell out that the period spent on the extraordinary leave or leave without pay or a period of overstayal after the expiry of leave or joining time cannot count towards increments; unless the order of the competent authority sanctioning the extraordinary leave or leave without pay or the order commuting the period of overstayal into extraordinary leave or leave without pay is accompanied by a specific order to count the period for increments. A period of unauthorised absence from duty treated as a misconduct and held liable to be punished by way of penalty cannot be placed on a footing better than the period of extraordinary leave or leave without pay or a period of overstayal. Ordinarily, the increments are earned on account of the period actually spent on duty or during the period spent on leave the entitlement to which has been earned on account of the period actually spent on duty. The direction of the High Court entitling the respondent to earn increments during the period of unauthorised absence from duty though held liable to be

C/SCA/13235/2020 JUDGMENT

punished in departmental inquiry proceedings would amount to putting a premium on the misconduct of the employee.

[11] For the foregoing reasons, we are of the opinion that the impugned judgment of the learned single Judge of the High Court and upheld by the Division Bench cannot be sustained. The judgment of the learned single Judge and the Division Bench are, both, set aside. The appeal is allowed. No order as to the costs.

12. The Supreme Court in case of Andhra Pradesh State

Road Transport Corporation (APSRTC) Vs. Abdul Kareem,

(supra) relying upon its earlier decision in case of S.

Narsagoud (supra), held as under:-

"[9] In our considered opinion, the argument advanced by the counsel is not tenable in law in the view taken by this Court in the recent decision. In the case of A.P. SRTC and Anr. Appellants Vs. S. Narsagoud Respondent (2003)2 SCC 212, this Court had occasion to deal with the identical controversy and succinctly crystallized the point of law. In that case the respondent was a Conductor in the employment of appellant - A.P.S.R.T.C. He remained absent from duty between 05.06.1982 and 08.08.1982 and again between 13.10.1992 and 01.11.1992. A departmental inquiry was initiated against him on the charges of unauthorized absence which ended in the punishment of removal from service and a dispute was raised before the Labour Court. The Labour Court upheld the departmental enquiry and the findings arrived thereat, but the respondent was directed to be reinstated with continuity of service but without back-wages. The Learned Single Judge, on being approached by the respondent, directed the appellant to fix the wages payable to him on his reinstatement by taking into account the increments that he would have earned had he been in service during the period of absence from duty.

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This finding of the Learned Single Judge was affirmed in an appeal by the Division Bench. This Court allowed the appeal preferred by the A.P.S.R.T.C.

[10] The principle of law on point are no more res integra. This Court in S. Narsagoud (supra) succinctly crystallized principle of law in Paragraph 9 of the judgment on Page SCC 215:

"We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorized absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorized absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."

13. The Supreme Court has reiterated the view in recent

decision in case of Nand Kishore Shravan Ahirrao Vs. Kosan

Industries (P) Ltd. reported in LawSuit (SC) 46.

14. Going back to the uncontroverted facts of the case, the

Labour Court had specifically directed by order dated

18.4.2007 passed in Reference (L.C.R.) No. 156 of 2002

reinstatement of the respondent without backwages. There

is no clear and specific direction that the respondent would

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be entitled to all the consequential benefits. The award of

the Labour Court was confirmed by this Court vide order

dated 6.12.2012 passed in Special Civil Application

No.27408 of 2007 however, punishment of stoppage of one

increment without future effect was imposed upon the

respondent.