Govindbhai Punambhai Vaghela C/O ... vs Chief Manager
2022 Latest Caselaw 7593 Guj

     C/LPA/1037/2022                       ORDER DATED: 06/09/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/LETTERS PATENT APPEAL NO. 1037 of 2022
                              In
        R/SPECIAL CIVIL APPLICATION NO. 17091 of 2011

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      GOVINDBHAI PUNAMBHAI VAGHELA C/O JITENDRA K. VED
                          Versus
                      CHIEF MANAGER
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Appearance:
MR K R MISHRA(6312) for the Appellant(s) No. 1
PRABHATSINH J PARMAR(7996) for the Appellant(s) No. 1
MR DARSHAN M PARIKH(572) for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                       Date : 06/09/2022

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present Appeal under Clause-15 of the Letters Patent, the appellant-original respondent (Daily Wager) has challenged the oral judgment dated 24.09.2018 passed by learned Single Judge in Special Civil Application No.17091 of 2011 by which the petition filed by the present respondent- Bank came to be allowed and award passed by Presiding Officer, C.G.I.T. from Labour Court, Ahmedabad in Ref. ITC 56 of 1998 (Old) and Ref. CGITA 93 of 2004 (New) came to be allowed in favour of the present appellant by which the Bank was directed to reinstate with 50% of basic with continuity of service.

2. We have heard learned advocate Mr. K.R. Mishra for the

C/LPA/1037/2022 ORDER DATED: 06/09/2022

appellant as well as learned advocate Mr. Darshan M. Parikh for the respondent-Bank, since the caveat has been filed on behalf of the respondent-bank.

3. Short facts arising from the record are as under:

3.1 That the present appellant was working as a workman with the respondent-Nationalized Bank, Santram Road, Nadiad Branch (Nadiad Main branch). It is the case of the respondent- Bank that the workman repeatedly remained absent from duty. He was served with notice, however, no reply was filed. Once again workman remained absent from 26.04.1994 to 02.05.1994 and thereafter, from 05.05.1994 till 02.09.1994. As absence of the workman for this period was un-authorized, he was served with a show-cause notice on two occasions which was not replied and final notice of cessation of work of the workman has been served upon the appellant on 02.09.1994. This notice has been replied by the workman vide its reply dated 20.01.1996. As the workman failed to respond to the notice dated 02.09.1994 within a period of thirty days, by applying Section 20 of the bipartite agreement, his services came to be terminated by Bank, against which, workman preferred Reference before the Presiding Officer, CGIT-cum- Labour Court, Ahmedabad.

3.2 The said reference was decided by Labour Court in favour of the employee as stated herein-above. The said decision was challenged by the Bank by way of captioned petition which came to be allowed. Hence this Appeal.

C/LPA/1037/2022 ORDER DATED: 06/09/2022

4. Mr. Mishra, learned advocate for the appellant-employee, would submit that learned Single Judge has committed an error in observing that the appellant has remained absent without any leave for more than 90 days. By relying upon the observations made in the award, he would submit that the Labour Court has rightly observed that the leave was approved by the Bank and, therefore, the Appeal may be admitted.

5. On the other hand, Mr. Parikh, learned advocate appearing for the respondent-Bank, would submit that since the observations made by the Labour Court was contrary to the evidence produced on record, the Bank had challenged the order/award passed by the Labour Court. He would submit that it has been rightly observed by learned Single Judge that on various occasions, the appellant has remained absent without any leave granted by the bank. He would submit that as per Clause-17 of bipartite settlement, if an employee abstain himself from work for the period of 90 or more consecutive days without submitting any application for leave or for any extension, his services is to be treated as seized. In support of his submission, he has relied upon the decision of Hon'ble Apex Court in the case of Regional Manager, Bank of Baroda Vs. Anita Nandrajog reported in AIR 2009 SC (Supp) 1798 and would submit that the Appeal may be dismissed.

6. We have heard learned advocates appearing for the respective parties. It appears from the record that the appellant has remained absent for more than 90 days and though notice was issued and served to workman on

C/LPA/1037/2022 ORDER DATED: 06/09/2022

09.06.1994, neither he responded to the said notice nor joined the Bank. He would submit that only in the year 1996, he has filed some evasive reply without any supporting documents.

7. In view of the above facts, learned Single Judge has rightly dealt the case and allowed the petition.

8. We have perused the order of Labour Court as well as of learned Single Judge and considered the ratio laid down by the Hon'ble Apex Court in the case of Regional Manager, Bank of Baroda (supra).

8.1 Learned Single Judge has observed in Paragraph Nos. 4, 5, 6 and 7 as under:

"4. Learned counsel for the petitioner has submitted that, the Tribunal has not taken into consideration repeated absence of the workman. Learned counsel has given lists of the period when the workman has remained absent and some of the notices were also served upon him on 29.08.1989, 27.11.1989, 18.05.1992, 01.12.1992, 02.02.1993, 04.02.1993, 08.02.1993, 16.02.1993, 17.02.1993, 24.12.1993, 20.01.1994, 02.02.1994, 04.03.1994, 05.04.1994, 09.06.1994, 29.07.1994, 02.09.1994, 17.10.1994 and 20.01.1996 accordingly. Learned counsel has further argued that the workman has once again remained absent from 26.04.1994. Because of this absence, two more notices were issued to the workman on 09.06.1994 and 29.07.1994. However, the workman failed to furnish any reply to these notices. Finally, while applying Clause 20 of the bipartite settlement, cessation notice was issued to the workman on 02.09.1994. The workman failed to furnish any reply to this notice within the mandatory period of thirty days and ultimately his services came to be terminated. The workman has tried to build up a case that the notice issued to him on 02.09.1994, has been replied by him on 21.09.1996. However, the Tribunal has not taken into account the aforementioned facts and has decided the case in favour of the workman. In support of these arguments, he has also relied upon the decision of the Apex Court passed in case of Regional

C/LPA/1037/2022 ORDER DATED: 06/09/2022

Manager, Bank of Baroda v/s. Anita Nandrajog, AIR 2009 SC (Supp) 1798.

5. The above arguments have been controverted by the learned counsel representing the respondentworkman. It has been submitted that though the Bank has claimed to have issued a notice on 02.09.1994, this notice has never been received by the workman. He has further denied receipt of the notice on 09.06.1994 and 29.07.1994. These are the arguments of the learned counsel for the respondents that the notice for cessation of work of workman was required to be operated after a period of 30 days from the date of receipt of such notice. As this notice has been received by the workman in the month of January, 1996, he has replied to the same on 20.01.1996. As reply was filed within a period of 30 days from the date of knowledge of the workman, the notice could not be treated as un-served after a period of 30 days from 02.09.1994.

6. This Court has considered the submissions of both the sides. Though the dispute has been raised regarding absence from 26.04.1994, perusal of the record shows that apart from aforementioned absence, the workman was frequently absent on various occasions. Number of letters have been written by the Bank regarding un-authorized absence of the workman. Some of these letters are acknowledged by the workman, however, no reply has been filed. On 26.04.1994, the workman has remained continuously absent till issuance of final notice for cessation of work of workman on 02.09.1994. The workman has tried to explain this absence by relying upon some medical certificate, however, no such certificate has been shown to this Court despite specific order being passed in this regard. Otherwise also, if the workman is not able to remain present on duty, any of the family members could have informed the Bank about the condition of the respondent-workman. Un-authorized absence for a period of more then one year, cannot be taken lightly.

7. The judgment in the case of Regional Manager, Bank of Baroda v. Anita Nandrajog (Supra) is fully applicable in this case. While upholding in favour of the Bank, it has been held that remaining on un-authorized leave for more than 150 consecutive days and failing to join duty, the order of termination on the ground of voluntary cessation of work by the employees the employer is valid and legal and does not require any inquiry to be conducted before taking such action."

C/LPA/1037/2022 ORDER DATED: 06/09/2022

9. We are in complete agreement with the observations made herein by learned Single Judge. Hence, present Appeal is dismissed.

(A.J.DESAI, J)

(MAUNA M. BHATT,J) T. J. Bharwad