Gujarat High Court
Rajeshbhai Chandubhai Bataviya vs Commissioner,Junagadh Municipal ... on 22 January, 2025
NEUTRAL CITATION
C/SCA/3817/2018 JUDGMENT DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3817 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
No
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RAJESHBHAI CHANDUBHAI BATAVIYA
Versus
COMMISSIONER,JUNAGADH MUNICIPAL CORPORATION & ANR.
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Appearance:
JEET Y RAJYAGURU(8039) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 22/01/2025
ORAL JUDGMENT
1. This petition is filed under Article 226 and 227 of the
Constitution of India challenging the award passed by
the learned Presiding Officer, Labour Court No.1,
Junagadh in Reference (T) Case No.231 of 2004 dated
29.09.2017 whereby the reference filed by the present
petitioner claiming the reinstatement in the service
came to be rejected.
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2. Facts needed to be considered for the disposal of the
case is that petitioner was appointed as a Junior Clerk
with the Revenue Department of respondent No.1 vide
office order dated 15.01.1990 on a pay scale of 950-1500
on probation period of six months, subsequently the
service of the petitioner was regularized vide officer
order dated 18.04.1991. On 25.02.1994 charge sheet
came to be issued with allegation of remaining absent
from duty unauthorisedly which was replied by the
present petitioner on 01.03.1994 and thereafter,
petitioner was placed on suspension from 21.05.1993
during the pendency of the inquiry on the ground of
remaining absent from duty. Thereafter, service of the
petitioner came to be terminated with effect from
16.01.2001. Challenging the above termination, Civil
Suit came to be filed being No.540 of 1993 before the
learned Civil Court, Junagadh for declaration that the
suspension order dated 21.05.1993 is null and void and
to declare that the action of the respondent-authority,
terminating the service of the petitioner on 16.01.2001
is illegal. Thereafter, the aforesaid suits came to be
withdrawn on 26.03.2003 with a liberty to file the suit in
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future if required. Thereafter, reference was filed being
Reference T case No.231 of 2004 which was rejected
after analyzing the evidence which was adduced before
the learned labour court vide order dated 29.09.2012,
which is the subject matter of consideration before this
Court.
3. Heard learned advocate Mr.Rajyaguru for the petitioner
and learned advocate Mr.Munshaw for the respondent.
4. Learned advocate Mr.Rajyaguru submits that action of
the respondent, in terminating the service of the
petitioner without following procedure prescribed under
the law or without initiating any departmental inquiry is
void. Learned advocate Mr.Rajyaguru submits that
though the petitioner was put under suspension,
however, subsistence allowance was not paid to him for
a certain period and therefore, petitioner made an
application for payment of subsistence allowance which
remained unattended and therefore, also impugned
order deserves to be set aside.
4.1. Learned advocate Mr.Rajyaguru submits that prior to
filing of reference, the notice was issued on 05.07.2004
which also remained unattended, however, without
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considering the above aspects, learned labour court has
dismissed the reference and declined the relief of
reinstatement. Learned advocate Mr.Rajyaguru submits
that production application which was filed below
Exh.37 for producing the record from the year 1990 to
16.01.2016, also remained undecided before passing the
final order. Learned advocate Mr.Rajyaguru submits that
without examining the case in light of section 25(F) and
25(G), the learned court has rejected the reference and
therefore, also impugned award deserves to be set aside.
5. Per Contra learned advocate Mr.Munshaw has submitted
that without intimating, the petitioner herein has
remained absent unauthorisedly for a period of 10 years
and there was no termination, but as after revocation of
the suspension order petitioner did not resume the duty
and on the contrary reply was given to pay a subsistence
allowance, therefore, it cannot be said that the
petitioner was dismissed from the service, but he himself
has abandoned from the service. Learned advocate
Mr.Munshaw submits that as there is no termination,
therefore, no question arises for reinstatement and for
following provisions under section 25(G) and (H).
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5.1. Learned advocate Mr.Munshaw has relied on the
documentary evidence placed before the learned labour
court, more particularly Exh.52 where the order was
passed to reinstate the respondent to his original post,
considering the absence period as suspended period.
Learned advocate Mr.Munshaw has also relied on the
publication of notice produced below Exh.54 and
submitted that despite having received the order dated
07.06.2000, the respondent did not resume his duty,
however, he had replied on 13.06.2000 to continue the
suspension period and to continue the payment of
subsistence allowance. Learned advocate Mr.Munshaw
submits that the copy of the charge-sheets were
produced below Exh.60 and the same was provided to
the petitioner below Exh.61 and the learned labour
court, after considering all the materials placed has
rejected the reference. Learned advocate Mr.Munshaw
submits that before the learned labour court, it was
admitted that no dispute was raised regarding the
departmental inquiry and thereafter, all the evidences to
prove the charge against the petitioner was placed on
record and after examining the same in detail, learned
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labour court declined to interfere with the dismissal
order. Therefore, no interference is required and it was
submitted to dismiss the petition.
6. Considering the submissions made by the learned
advocates for the respective parties and perusing the
records produced alongwith, it transpires that the
reference came to be filed being Reference (T) No.231 of
2004 challenging the oral termination on 16.01.2001
and it was prayed to grant the relief of reinstatement. In
the statement of claim, assertion was made that the
petitioner was working since long on the post of Junior
Clerk. However, no specific dates were mentioned in the
statement of claim. The evidence below mark 36/1 which
is the office order wherein, the name of the petitioner
was placed at Sr.No.4 in which Nagarpalika had assured
to the daily wages to reinstate them on the post of Junior
Clerk, therefore, appointment on 15.09.1990 was made
on the post of Junior Clerk on probation for the period of
six months. During the period of probation, on
22.01.1991, the petitioner was terminated with a charge
of unauthorised absence against which the petition came
to be filed before this Court being SCA No.460 of 1991
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in which the status qua was granted by the Court,
thereafter, on completion of the probation period,
petitioner was appointed on regular post and in that
view the petition came to be withdrawn before this
Court. Service book which was produced before the
learned labour court below Exh.48 as well as same is
produced before this Court also, suggests that on
08.05.1992, petitioner was unauthorisedly absent for
half day and on 21.05.1992 also he remained absent
unauthorisedly, therefore minor penalty was impose.
6.1. Again on 21.05.1993, the suspension order was
passed during the pendency of the inquiry with a charge
of remaining unauthorisedly absent, thereafter, up to
September 1996, 75% subsistence allowance was paid to
the petitioner which was received by his brother under
authority of the petitioner. On 07.06.2000, the order was
passed by the respondent that there is shortage of staff
and without work, the respondent has to pay the
subsistence allowance, therefore, the order of revocation
of suspension was passed and the petitioner was
informed to resume the duty. The reply was given by the
petitioner on 13.06.2000 that revocation of suspension is
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not clear, therefore instead of revoking the suspension
order, payment of subsistence allowance be paid.
6.2. Another application was filed which was received by
the respondent on 14.12.2000 that the suspension order
be continued and he shall be paid the subsistence
allowance. Despite the publication of the notice in the
newspaper, the petitioner did not resume the duty,
however, he made a request to continue the payment
under the head of subsistence allowance. Thereafter,
further order was passed by the respondent on
16.01.2001 that after issuing the charge-sheet,
disciplinary proceedings be initiated and till then, the
subsistence allowance be paid continuously.
7. As per the noting made in the service book, though the
petitioner was informed not to leave the headquarter
and to report to mark his presence, however, he did not
report and his subsistence allowance was also received
by his brother under the authorization of the petitioner.
This Court is of the view that at any stage, if the
intimation would be given to rejoin the duty, then it is
bounden duty of the workman to resume his duty to
establish that he is ready to work, however, it was not
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done. In the instant case, despite he was offered the
work, the publication was made in the newspaper, he
remained absent and requested to pay the subsistence
allowance.
7.1. Learned labour court, after considering the material
came to the conclusion that the petitioner is not
interested in the work, however, he is interested only in
the subsistence allowance and therefore, learned labour
court has declined to interfere with the order of
termination as alleged by the petitioner.
8. This Court did not find any infirmity in the impugned
judgment and therefore, petition being devoid of merits
deserves to be dismissed.
9. Resultantly, this petition is dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
