Bai Nabaliben Mojibhai vs Surat Municipal Corporation
2022 Latest Caselaw 6027 Guj

     C/SCA/20084/2017                           ORDER DATED: 07/07/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20084 of 2017

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                        BAI NABALIBEN MOJIBHAI
                                Versus
                SURAT MUNICIPAL CORPORATION & 1 other(s)
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Appearance:
MR R N MAJMUDAR, ADVOCATE WITH
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR CJ VIN(978) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 07/07/2022

                             ORAL ORDER

1. This petition under Article 226/227 of the Constitution of India is filed to set aside the award dated 15.04.2017 passed in Reference (L.C.S.) No. 202 of 2008 by the Labour Court, Surat. By the impugned order, the reference made by the petitioner for reinstatement subsequent to her dismissal in exercise of Section 56(2) of the Gujarat Provincial Municipal Corporation Act was rejected.

2. Learned advocate for the petitioner has submitted two arguments to substantiate his claim to set aside the award of the Labour Court, the first being that sufficient opportunity was not given to the petitioner so as to put her reasons for absenteeism. The second argument is that the ground for remaining absent, cannot be considered to be so grave so as to terminate the services of the petitioner by way of an order of dismissal.

C/SCA/20084/2017 ORDER DATED: 07/07/2022

3. Learned advocate for the petitioner has taken this Court to the award of the Labour Court to indicate that the petitioner had produced reasons before the authority for remaining absent, firstly, as her husband had expired and secondly that, she had suffered from TB (Tuberculosis). It is submitted that these reasons were sufficient to explain her absenteeism, and therefore, the order of dismissal ought not to have been passed.

4. Learned advocate for the petitioner has, thereafter, referred to and relied upon the decision of this Court passed in case of Gujarat State Road Transport Corporation Vs. Sarfudin K. Saiyad reported in 2002(4) GLR 3199 to submit that in a similar facts where the ground of removal was absenteeism, the Court had taken into consideration the reason and explanation offered and ordered reinstatement with 25% back-wages.

5. As against this, learned advocate for the respondent- corporation submitted that there is no question of not following the principles of natural justice, as even from the impugned judgment, it is coming on record that on three occasions, memos were issued to the petitioner for remaining present and upon failure by the petitioner to respond to the same, a separate show-cause notice was issued to the petitioner, which was communicated to her at her residence in her village, as she was not found available in her known address at Surat City. Despite that there was no reply and for the first time the reason for absenteeism given by the petitioner at the stage of appeal.

6. It is further submitted that the city of Surat was undergoing a natural calamity, and therefore, the services of the employees corporation were requisitioned by the public notices through electronic and print media to which also the petitioner

C/SCA/20084/2017 ORDER DATED: 07/07/2022

though a responsible employee, had not responded to such call of duty and hence, the corporation after giving necessary opportunity of hearing, has as arrived at a conclusion and in exercise of powers under Section 256(2) of the Act, dismissed the petitioner from the services. It is also submitted that in so far as the certificates to substantiate the absenteeism were also examined not only by the first authority, but also by the appellate authority as well as by the Labour Court and having found that the medical certificate of the petitioner does not support the version of the petitioner for remaining absent for almost for a period of more than one year, the certificate was not accepted.

7. Having considered the rival submissions made by learned advocate for the parties and having perused the documents on record, there appears no dispute that the petitioner was working as permanent Beldar since 01.01.1980. In fact, the petitioner was absent on her duty from 16.01.2006 without prior intimation or report or getting leave sanctioned from the respondent. Though, she was issued memo on 13.02.2006 to furnish explanation regarding her absence and she received the same, the petitioner did not produce any explanation. Thereafter, as the petitioner did not resume, she was issued memo on 07.03.2006 and 27.03.2006, which were received by her but neither she made any explanation regarding her absence nor resumed duty. Thereafter, show-cause notice was issued to the petitioner on 01.06.2006 and as the petitioner moved to her native at that time, address of her native was traced and notice was sent at the said address, which was not received by petitioner and it was returned. Before any appropriate action can be taken against the show-cause notice, Surat City faced calamity of flash flood on 07.08.2006 and Surat City submerged

C/SCA/20084/2017 ORDER DATED: 07/07/2022

in the water. Therefore, Government of Gujarat declared Surat Municipal Corporation Area of Surat City as 'Disaster Affected Area' under the Disaster Management Act. After floodwater receded, a public notice was issued by Surat Municipal Corporation through daily newspaper, radio, Doordarshan etc. to all the officers, employees and workers to appear on the duty with immediate effect in order to clean and do other necessary work in the Surat City and thereby directed the concerned to attend the duty. Though the petitioner got informed, petitioner has not attended the duty, nor produced any sickness certificate or any explanation thereof. Therefore, as she is consistently absent without getting leave report sanctioned or without prior notice, she is proved to be an unauthorized absentee and therefore, as per Section-56(2)(H) of the B.P.M.C. Act, the petitioner has been dismissed due to her unauthorized absent by the Commissioner, Surat Municipal Corporation on 21.08.2006. Husband of the petitioner, as stated by her, died on 28.02.2005. thereafter for some period, the petitioner has performed duties of the service, but remained unauthorized absent since 16.01.2016. She remained absent in spite of public notice being issued to perform duties at the time of floods. In this duration, the petitioner has not submitted any report or medical certificate to the organization regarding self sickness or stating that she is unable to resume duty as she is suffering from T.B. After issuing public notice to perform the essential duties and to tackle the difficult situation created by the floods, attendance of the workmen who resumed their duties was marked in the attendance register and the present petitioner did not resume the duty, hence she was marked absent in the attendance register and such absence was marked as leave without pay. However, petitioner remained absent without leave report, hence

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remarks have been mentioned regarding her absence.

8. The Court has examined the findings given by the Labour Court in connection with the Certificate produced by the petitioner before the authority itself and clearly from the discussion, it appears that that the case of the case of TB made out by the petitioner was not supported by such certificate. In absence of proper medical certificate, the petitioner, in the opinion of the Court, has failed to explain the absenteeism for a period of over more than one year.

8.1 The contention with regard to the absenteeism on account of death of the husband, considering the date on which the demise of her husband taken place and the chronology of events thereafter, it is clear that such cannot be the ground to justify the absenteeism for period of more than one year.

8.2 The Court has examined the record. It appears from time to time the petitioner has been issued with the memos for remaining present. Upon failure of the petitioner to answer such memos, the petitioner has been issued with show-cause notice and from the record, it appears that when the petitioner was not found at her place of residence, the corporation has served with such memos upon the petitioner at her native.

9. In that view of the matter, apparently the Corporation has complied with the due process before passing the impugned order. No case is made out to interfere with the award of the labour court in so far as setting aside the order of Terminating the services of the petitioner.

C/SCA/20084/2017 ORDER DATED: 07/07/2022

10. However, the Court has also taken into consideration the fact that the petitioner was appointed on a permanent post of Beldar on 01.01.1980 and has been in service for long period till 21.08.2006, and thereby, more than 30 years of service with the respondent-Municipal Corporation. During this 30 years, nothing has been brought on record to indicate any other misconduct by the petitioner and considering the fact that the absenteeism during this period was to the extent of one year. Moreover, the petitioner has now attained the age of superannuation, and therefore, the Court deems it fit considering the long period of her service to grant of lumpsum compensation to the tune of Rs. 1 lac. The amount to be paid by the respondent-corporation within a period of one month from the date of receipt of this order.

11. No case is made out to otherwise interfere with the award of the Labour Court. The petition deserves to be dismissed and is hereby dismissed. Notice is discharged.

(A.Y. KOGJE, J) GIRISH