Kamlesh Ranchodbhai Joshi vs Division Controller
2023 Latest Caselaw 268 Guj

     C/SCA/3293/2020                             JUDGMENT DATED: 10/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


               R/SPECIAL CIVIL APPLICATION NO. 3293 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE                                   Sd/-
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1     Whether Reporters of Local Papers may be allowed                NO
      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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                       KAMLESH RANCHODBHAI JOSHI
                                  Versus
                          DIVISION CONTROLLER
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Appearance:
MR JK PARMAR(587) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) 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 : 10/01/2023

                            ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of India is filed against the award dated 14th June 2018 passed by the Labour Court, Junagadh, in Reference (L.C.J.) No.2 of 2016. By the aforesaid award the Reference that was made by the petitioner came to be dismissed.

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2. It is the case of the petitioner that the petitioner was working as a Peon (Class-IV) since long at the Gandhinagar Depot of the respondent - State Road Transport Corporation, but was sought to be transferred from Gandhinagar to Veraval.

3. It is the say of the petitioner that as the petitioner was unable to resume charge at Veraval, he made representations to the higher authorities so as to permit him to continue at his original place at Gandhinagar instead of Veraval. However, such representations were not considered. Thereafter, the petitioner came to be dismissed from service pursuant to the departmental inquiry on his not resuming the duty at Veraval. Therefore, the petitioner had raised industrial dispute.

4. Learned advocate for the petitioner submitted that the petitioner had brought to the notice of the Labour Court various factors including personal difficulties of children education, etc. because of which the petitioner was prevented from resuming duty at Veraval.

5. It is submitted that even if the inquiry conducted and the fact that the petitioner did not resume at the transferred place is taken as it is, still the punishment of dismissal from service is harsh considering the eleven years' long service of the petitioner with the respondent Corporation.

6. As against this, learned advocate appearing for the respondent Corporation has submitted that not only the petitioner did not resume his duty at the place where he was

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transferred but the petitioner has not even participated in the departmental inquiry all throughout and, therefore, the punishment came to be inflicted. Moreover, the past record of the petitioner is also not so clean as there was grievous misconduct against the petitioner.

7. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the petitioner was working as a Peon (Class-IV) with the respondent

- State Road Transport Corporation. It further appears that on 23rd April 2012, the petitioner came to be dismissed from service by order passed in a default case. It further appears that the petitioner was also issued with a charge-sheet for not remaining present on duty with effect from 23rd August 2011. Thereafter, pursuant to the charge-sheet, the departmental inquiry was proceeded and upon a detailed inquiry, the order dated 23 rd April 2012 came to be passed dismissing the petitioner.

8. It appears that the petitioner had filed a First Appeal against the order of dismissal which came to be rejected on 17 th May 2014 and thereafter, a Second Appeal was filed which also came to be rejected on the basis of delay on 30 th September 2015. Thereafter, the petitioner has filed the Reference invoking Section 11-A of the Industrial Disputes Act.

9. From the record, it appears that the petitioner has not challenged the procedural aspect of the departmental inquiry which has culminated into the order of dismissal and has agitated only the issue of disproportionate punishment of dismissal. Moreover, the arguments made by the learned

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advocate before this Court are also to the extent of disproportionate punishment.

10. This Court has taken into consideration the reasonings given by the Labour Court while dismissing the appeal and does not find any error on the part of the Labour Court in passing the impugned award. Over and above, the Labour Court has also observed that insofar as the petitioner is concerned, there was a previous misconduct on two occasions and, therefore, it would not be a case for invoking Section 11-A of the Industrial Disputes Act.

11. In view of the above, no case is made out for interfering with the reasonings given and order passed by the Labour Court in the Reference (L.C.J.) No.2 of 2016 dated 14 th June 2018. Hence, the petition is dismissed.

(A.Y. KOGJE, J.) /MOINUDDIN