Gujarat High Court

Municipal Commissioner , Ahmedabad ... vs Dhandhar Nagjibhai Zanzarbhai on 4 August, 2025

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                            C/SCA/9501/2025                                          JUDGMENT DATED: 04/08/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                      R/SPECIAL CIVIL APPLICATION NO. 9501 of 2025

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MRS. JUSTICE M. K. THAKKER

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                                   Approved for Reporting                           Yes            No
                                                                                                   ✔
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                       MUNICIPAL COMMISSIONER , AHMEDABAD MUNICIPAL CORPORATION
                                                 & ANR.
                                                  Versus
                                    DHANDHAR NAGJIBHAI ZANZARBHAI
                       ==========================================================
                       Appearance:
                       MR HAMESH C NAIDU(5335) for the Petitioner(s) No. 1,2
                       IG JOSHI(8726) for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                            Date : 04/08/2025

                                                           ORAL JUDGMENT

1. Upon consent of both parties, the matter was taken up

for final hearing.

2. Rule returnable forthwith. Learned advocate

Mr.I.G.Joshi waives notice of Rule on behalf of

respondent.

3. The present petition is filed under Articles 226 and 227

of the Constitution of India, challenging the award dated

29.11.2024 passed by the learned Labour Court,

Ahmedabad in Reference (T) No. 407 of 2013, whereby

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the learned Labour Court directed the present petitioner

to reinstate the respondent with 25% back wages, and

further observed that continuity of service shall be

counted for the purpose of extending terminal benefits.

4. It is the case of the present petitioner that the

respondent was appointed as a Teacher on 01.07.1996

and continued in service until his termination on

05.09.2011. The respondent proceeded on medical leave

on 02.12.2008. As on 17.02.2009, his leave balance was

one month and six days. Accordingly, for the period from

02.12.2008 to 19.12.2008 (i.e., 18 days), the respondent

was treated as being on commuted leave, and from

20.12.2008 onwards, his leave was treated as leave

without pay. The respondent was directed to appear

before the Medical Board of Sheth V.S. Hospital on

05.01.2009 for obtaining a fitness certificate. Although

he appeared on the said date, he did not possess the

required certificate, and was therefore instructed to

appear again with the same. Thereafter, he was

informed to remain present before the Medical Board on

multiple dates, namely 20.03.2009, 13.04.2009,

07.05.2009, 20.05.2009, and 04.06.2009. Despite

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receiving all the communications, the respondent failed

to remain present before the Medical Board. In view of

the respondent's conduct, a chargesheet was issued on

11.08.2009. Though the chargesheet was duly served,

the respondent failed to submit any response thereto. A

departmental inquiry was initiated by the petitioner, and

the first hearing was scheduled on 08.09.2009. Despite

being duly informed, the respondent failed to participate

in the inquiry proceedings. The inquiry had to be

deferred on multiple occasions due to the respondent's

continued absence, specifically on 17.09.2009,

30.09.2009, 29.10.2009, 13.11.2009, 23.12.2009,

07.01.2010, 21.01.2010, and 28.01.2010. On each of

these dates, the respondent chose not to remain present

before the Inquiry Officer. Ultimately, based on the

findings of the departmental inquiry, which held the

charges against the respondent to be proved, and

considering the gravity of the misconduct, an order of

termination was passed on 05.09.2011. The respondent

preferred a departmental appeal against the order of

termination, which came to be rejected by the Appellate

Authority vide order dated 22.02.2012. Challenging the

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said order, the reference came to be filed before the

learned labour court, Ahmedabad which was registered

being Reference (T) No.407 of 2013. Upon considering

the statement of claim, written statement filed by the

petitioner, and the evidence adduced by both parties,

the learned Labour Court exercised its powers under

Section 11(A) of the Industrial Disputes Act, 1947, and

substituted the penalty of termination with

reinstatement along with 25% back wages. The said

award is the subject matter of challenge before this

Court.

5. Heard learned advocate Mr.Hamesh Naidu for the

petitioner and learned advocate Mr.I.G.Joshi for the

respondent

6. Learned advocate Mr.Naidu submits that learned labour

court has committed an error in interfering with the

punishment awarded by the department by holding that

the punishment is excessive to the charges. Learned

advocate Mr.Naidu submits that though legality and

validity of the departmental inquiry remained intact and

findings were also not recorded perverse, the learned

labour court by misreading the documentary evidence

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has substituted the punishment imposed by the

petitioner. Learned advocate Mr.Naidu submits that

although several opportunities were granted to the

respondent to appear before the Medical Board for

obtaining a fitness certificate, the respondent, despite

being duly served with communications, failed to appear

before the Board on the scheduled dates. Contrary to

this factual position, the learned labour court recorded a

finding that the respondent had regularly appeared

before the Medical Board and had obtained the requisite

certificate. Learned advocate Mr.Naidu submits that

papers of two prior departmental inquiries against the

respondent were placed on record. However, the Labour

Court, overlooking these material facts, incorrectly

recorded that the respondent's past service record was

unblemished. In that background also impugned award

deserves to be interfered with. Learned advocate

Mr.Naidu submits that power under section 11(A) of the

I.D.Act should be exercised judicially rather than

exercising the same in a liberal manner. However,

learned reference court, without assigning any cogent

reasons has set aside the order of punishment and

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directed the present petitioner to reinstate the

respondent with 25% back wages, therefore, the

impugned award be set aside and the petition be

allowed.

7. Per contra, learned Advocate Mr. Joshi, appearing for

the respondent, submits that the record clearly indicates

that the respondent appeared before the Medical Board

on 05.01.2009, but no fitness certificate was issued to

him on that date. It is further submitted that the Labour

Court recorded its findings after a detailed scrutiny of

the evidence placed on record, and in that background,

no error was committed by the learned Labour Court in

substituting the punishment. Hence, the petition

deserves to be dismissed, and the impugned award

deserves to be upheld.

8. Having considered the submissions advanced by the

learned advocates for the respective parties and upon

perusal of the record and proceedings placed before this

Court, it clearly emerges that the respondent was

appointed as a Teacher on 01.07.1996 and had

proceeded on medical leave from 02.12.2008. As per the

official leave records, the respondent had a leave

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balance of one month and six days, and accordingly, the

period from 02.12.2008 to 19.12.2008 was treated as

commuted leave, while the period from 20.12.2008

onwards was considered as leave without pay. The

respondent was informed to remain present before the

Medical Board, i.e., Sheth V.S. Hospital, on 05.01.2009

for obtaining a fitness certificate. However, although the

respondent did remain present on 05.01.2009, the

record suggests that he appeared without the necessary

medical reports. Therefore, he was called upon to

appear with the requisite reports on 20.03.2009,

07.04.2009, 13.04.2009, and 28.05.2009. The

correspondence on record clearly reflects that, despite

repeated opportunities, the respondent neither obtained

nor produced a fitness certificate and remained on leave.

In view of the said misconduct, a departmental inquiry

was initiated against the respondent. It is evident from

the record that the respondent did not participate in the

inquiry proceedings at any stage. Consequently, an

order of termination came to be passed by the Deputy

Municipal Commissioner on 05.09.2011. It is an

undisputed fact that the said order was challenged

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before the First Appellate Authority, and the first appeal

came to be rejected. Before the learned Labour Court,

the legality and validity of the departmental inquiry as

well as the findings remained unchallenged. Upon

examination of the reasons assigned by the learned

Labour Court in the impugned award, it emerges that

the Labour Court interfered with the punishment of

termination on the following three grounds i.e. (1) past

records of the respondent is unblemished; (2) long

service and (3) the report is produced before the learned

labour court to substantiate that the fitness certificate is

obtained.

8.1. As far as the first ground is concerned, this Court

finds that the Labour Court erred in concluding that the

respondent's past service was unblemished. The record

clearly discloses that two prior departmental inquiries

were conducted against the respondent which resulted

in penalties. Specifically, on 12.11.2002, a penalty of

withholding three increments with future effect was

imposed, and on 07.05.2007, a penalty of withholding

one increment with future effect was imposed. These

disciplinary proceedings were part of the record, yet

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were wrongly discarded by the Labour Court while

arriving at the conclusion that the respondent's past

record was clean.

8.2. Second ground on which the learned court has

interfered with the punishment was long service. It

emerges from the record that during these period of

service various irregularities were reported which is the

part of the record below Exh.20 to 26. From the above

evidence, it emerges that the service of the present

respondent was not satisfactory and on that ground also

reasons recorded by the learned labour court appears to

be perverse.

8.3. The third ground on which the Labour Court

interfered with the punishment was the alleged

production of a fitness certificate. However, a perusal of

the various communications addressed to the

respondent suggests that he remained present only once

--on 05.01.2009. Thereafter, although he was repeatedly

informed to appear, he did not comply and did not

procure the fitness certificate. During cross-

examination, the respondent admitted that he appeared

before the Medical Board on 05.01.2009 without any

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reports. He further admitted that although he was

informed to remain present on subsequent dates, he did

not appear and did not produce any fitness certificate. In

that background also, in the opinion of this Court,

learned court has committed grave error in exercising

the power under section 11(A) of the I.D.Act.

9. At this stage, this Court has referred the decision

rendered by the Apex Court in the case of L And T

Komatsu Ltd Versus N Udaykumar reported in 2007

LawSuit(SC) 1518. The relevant paragraphs of the said

judgment is reproduced hereinbelow:-

"3. Learned Single Judge noted that there were proved cases of misconduct of unauthorized absentism for 15 times but the workman had not improved his conduct. Notwithstanding this finding, learned Single Judge held that at the relevant point of time the workman was not well and was taking treatment at St. Martha Hospital. Accordingly it was held that the order of termination is harsh under the facts and circumstances of the case but looking into the past history directed reinstatement without continuity of service and without back wages. By the impugned order the Division Bench allowed the appeal filed by the respondent while dismissing the appeal filed by the present appellant.

5. It is submitted that habitual absentism is gross violation of discipline. It is also submitted that the parameters for the exercise of Section 11A of the Act have not been kept in view by the

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Labour Court and the High Court.

6. In response, learned counsel for the respondent submitted that because of personal problems there was unintentional absence and that should not have been seriously viewed. The reply to the second show cause notice on which the emphasis is laid by the appellant to contend that respondent had admitted his guilt was taken under coercion. It is also submitted that the discretion for exercise of jurisdiction under Section 11A has been rightly exercised."

10. In the considered opinion of this Court, unauthorised

absence is an indiscipline and where the employee does

not offer any satisfactory explanation, the employer

takes recourse of disciplinary action which may lead to

the extreme penalty of dismissal or removal from the

service. Therefore, this Court is of the view that the

learned Labour Court, without assigning cogent reasons,

has passed the impugned award directing the present

petitioner to reinstate the respondent with 25% back

wages. Hence, this petition deserves to be allowed.

11. Resultantly, this petition is allowed and the award dated

29.11.2024 passed by the learned Labour Court,