Dharampur Nagarpalika Through ... vs Mahendrasinh Narsinh Padhiyar
2021 Latest Caselaw 17899 Guj

     C/LPA/551/2021                                  CAV ORDER DATED: 30/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 551 of 2021

              In R/SPECIAL CIVIL APPLICATION NO. 2404 of 2017

                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                In R/LETTERS PATENT APPEAL NO. 551 of 2021
==========================================================

DHARAMPUR NAGARPALIKA THROUGH CHIEF OFFICER Versus MAHENDRASINH NARSINH PADHIYAR ========================================================== Appearance:

MR K.M.PATEL, SENIOR ADVOCATE with MR DEEPAK P

MR.KRUTARTH K PANDYA(7092) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

Date : 30/11/2021

CAV ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned senior advocate Mr.K.M.Patel with learned advocate Mr.Deepak Sanchela for the appellant and learned advocate Mr.Krutarth Pandya for the respondent, at length.

2. By filing this Letters Patent Appeal, the appellant Municipality through Chief Officer has called in question the order dated 13.2.2020 as well as the modified order dated 7.9.2020 passed by the learned Single Judge in Special Civil Application No.2404 of 2017. Learned Single Judge confirmed the order of Labour Court regarding reinstatement of the respondent workman with continuity of service. At the same time, in respect of period of 1995 till 2001, the benefit of

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backwages was not granted and accordingly the judgment an award of the Labour Court was modified.

3. The petition was filed by the petitioner Municipality in which it had challenged the judgment and award dated 7.10.2016 delivered by the Labour Court, Valsad in Reference (LCV) No.35 of 2011, the respondent workman had invoked the jurisdiction of the Labour Court seeking relief of reinstatement with back wages.

3.1 The respondent No.1 workman in his statement of claim (Exhibit 6) filed before the Labour Court stated that he was in service in the Health Department in the Municipality since 29.9.1981. On 30.7.2003 he was placed under suspension and on 17.1.2004, the charge-sheet was given to him. The charges appeared to be relating to unauthorized absence of workman. It was stated that since 1.2.1995, the workman was promoted to the post of Driver to Sanitary Inspector however, he was not permitted to join the duties despite addressing letters dated 29.4.2003 and 1.9.2003. It was the case that his services came to be orally terminated from 5.1.2004, even though no departmental proceedings were initiated. On the other hand, in the written statement (Exhibit 18) the first party employer contended that the workman had voluntarily discontinued to report on duty and he was absent since long. It was contended that the dispute between the Labour Court was brought under challenge after the delay of eight years and that the workman was engaged in some business and had agricultural income as well. It was thus the case that he had remained absent without getting the leave sanctioned and that he was not driven out of service.

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3.1 The issue addressed by the Labour Court was inter alia that the workman had voluntarily abundant the service and secondly whether the departmental inquiry held by the employer against the workman for his alleged absence was in accordance with the principles of natural justice. Labour Court found on basis of the discussion that services of the workman came to be terminated orally on 5.1.2004 without any good reason. In the context of the issue whether he was voluntarily abundant from service or it was the overt act of termination of service, appreciating the evidence before it, the Labour Court observed that from the evidence of workman (Exhibit 11) and his cross examination, it could be concluded that he had not left the services and it could be shown that despite several letters to the first party employer, he was not taken on duty. The workman was placed under suspension on 30.7.2003 as per the Resolution No.20 even otherwise who was in service since 1981.

3.2 The Labour Court observed that there was no evidence on record to suggest that the petitioner was irregular in attempting duty or had remained continuously absent. The witness on behalf of the employer was ignorant about the reason of termination of services of the workman. The Labour Court further observed that employer had failed to produce any evidence to show the absence of the workman. It was further found that any show cause notice was not issued nor any departmental inquiry was undertaken against the workman. The witness of the employer had stated that there was no evidence to suggest that the workman had himself stopped coming for work. Though the absentism was alleged from the year 1996 to 2001, it was not substantiated by any evidence or service record.

4. In the wake of rival case that workman was not allowed to

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join the duties on 5.1.2004 by employer and the employer contending that the workman himself stopped to attempt duties, by passing Resolution No.76, the workman came to be promoted from the post of Driver to the Sanitary Inspector. There were letters dated 29.4.2003, 1.9.2003, 6.10.2003, 16.10.2003, 20.10.2003 and 31.1.2004 by the workman to his employer requesting to permit him to join the duties. The suspension order was passed against the workman for his absence. The Labour Court recorded finding that the workman had grievance about non-payment of subsisting allowance and further that any proceedings were not undertaken in respect of the alleged absentism under the provisions of applicable standing orders.

4.1 The workman had worked for fourteen years as Driver. On the basis of the evidence broadly referred herein above and in the facts of the case, the Labour Court recorded specific finding that not only the employer had failed to rebut the evidence produce by workman, no evidence forthcame from the side of the employer. The workman was prevented from coming to duty and was subjected to injustice. All the above mentioned letters addressed by the workman to the employer requesting to permit to join the duties, were received and counter signing thereon evidence the receipt thereof by the employer, recorded Labour Court, it thus came to conclusion that there was illegal termination of service of the workman. Resultantly, the reference was allowed and the reinstatement with continuity of service from 5.1.2004 together with all consequential benefits and backwages was ordered by the Labour Court.

5. The set of evidence considered by Labour Court and the findings arrived at by it on that basis to award the relief for reinstatement with backwages to the workman was revisited by

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learned Single Judge. She applied the parameters set out by Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, [(2010) 8 SCC 329], in respect of the exercise of supervisory jurisdiction by the writ Court under Article 226 and 227 of the Constitution. More particularly, applied them in the context of the judgment and award of the Tribunal and the findings recorded by it, after detailed discussion, learned Single Judge did not confirm the direction of reinstatement of workman with continuity of service, however period from the year 1995 to 2001 was to be treated as dead period for the purpose of entitling the workman to get the backwages. The above qualification applied by learned Single Judge for considering the relief of backwages stands to reason when the facts of the case are closely considered.

5.1 The respondent workman was working since 29.9.1981 in the Health Department, his service was uninterrupted with unblemished record. On 1.2.1995 as per the Resolution No.76, he was promoted from the post of Driver to Sanitary Inspector. He was terminated from service on 5.1.2004. Notice was issued to the respondent in the year 2003. Learned Judge has observed that it is an enigma as to what happened between the year 1995 to 2001. After suspension of the workman, he moved the Labour Court under Section 33(c)(2). This proceedings culminated in the year 2010 when the prayer was rejected and thereafter the dispute was raised by the workman before the Labour Court resulting into judgment and award impugned in the Special Civil Application.

5.2 It is in context of such facts that learned Single Judge aptly observed that period from the year 1995 to 2001 was period of total inaction on part of the respondent, as he chose to wake up

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from slumber only in the year 2001 and contacted the petitioner Municipality. Learned Single Judge then observed that the Labour Court was right in holding that the petitioner Municipality did not conduct any departmental proceedings nor followed the law. The dismissal of the workman was accordingly rightly viewed by learned Single Judge to be illegal entitling the workman to reinstatement on the original post. It was only in respect of the period between the year 1995 to 2001, during which the workman was inactive and could not said to be not vigilant enough to agitate for his rights. It is for this period that the backwages have not been granted by learned Single Judge, modifying the judgment and award to that extent, the reinstatement and continuity of service has been confirmed. Furthermore, instead of 100% backwages, the same has been reduced to 80% from the date of termination that is 5.1.2004 and the order of reinstatement from 5.1.2004 with continuity of service came to be confirmed granting the backwages to the extent of 80%, as above, except for the period of 1995 to 2004.

6. In view of the above discussion, the modification in the judgment and award of the Labour Court regarding treatment of the period from 1995 to 2001 as well as for reducing the backwages is based on relevant factual aspects in the merits of the case. It stands to reason when learned Single Judge has denied for the aforementioned period further reducing to 80% when the period in question was categorized by inaction on part of the workman. The discretion exercised and applied by learned Single Judge on the aforesaid counts is not only reasonable but it is with nexus to the facts involved in the case. The modification of the judgment and award is entirely justified, just and proper.

7. The judgment and order of learned Single Judge does not

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book any error so as to require interference in exercise of jurisdiction under the Letters Patent Appeal. The appeal is dismissed.

ORDER IN CIVIL APPLICATION In view of the dismissal of the main appeal, the present Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(ANIRUDDHA P. MAYEE,J) Manshi