Gujarat High Court
Rajkot Municipal Corporation Through ... vs Jitubhai Laxmanbhai Vaghela on 1 October, 2025
NEUTRAL CITATION
C/SCA/3215/2020 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3215 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 65 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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RAJKOT MUNICIPAL CORPORATION THROUGH MUNICIPAL
COMMISSIONER
Versus
JITUBHAI LAXMANBHAI VAGHELA
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR DEEPAK G ALORIA(6580) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/10/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Deepak
Aloria waives service of notice of Rule, on behalf on
respondent No.1.
2. The present petition is filed under Articles 226 and 227
of the Constitution of India, assailing the award dated
09.07.2019 passed by the learned Labour Court, Rajkot
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in Reference (L.C.R.) No. 82 of 2014, whereby the
petitioner has been directed to reinstate the respondent
with continuity of service and to pay costs amounting to
₹2,500/-.
3. It is the case of the present petitioner that the
respondent was granted compassionate appointment
following the death of his father, who was employed as a
Safai Kamdar in the Solid Waste Management
Department. Pursuant thereto, the respondent was
appointed on 01.10.2005 to the post of Safai Sahayak for
a period of five years on an ad hoc basis, with a fixed
remuneration of ₹1,500/- per month. The terms of
appointment stipulated that during the period of ad hoc
service, his employment would be liable to termination
without notice in the event of any irregularity being
found in the discharge of his duties. It is submitted that
the respondent exhibited irregularity and indiscipline in
attending duties and in the performance of his assigned
tasks. Consequently, notices were issued to him on
22.12.2009, 04.01.2010, and 25.07.2011. Despite such
warnings, the respondent failed to improve his conduct
and continued to remain undisciplined, insubordinate,
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and was frequently absent without authorization. In view
of the aforesaid conduct, his services were terminated
vide order dated 08.02.2012. Aggrieved by the said
termination, the respondent raised an industrial dispute,
which culminated in Reference (L.C.R.) No. 82 of 2014
before the learned Labour Court, Rajkot, wherein he
sought reinstatement with all consequential benefits.
The learned Labour Court, after considering the
evidence adduced by both parties, allowed the reference
in favour of the respondent, thereby prompting the filing
of the present writ petition.
4. Heard learned advocate Mr.H.S.Munshaw for the
petitioner and learned advocate Mr.Deepak Aloria for
the respondent.
5. Learned Advocate Mr. Munshaw submits that at the time
of offering employment to the respondent on
compassionate grounds, several conditions were
imposed, one of which clearly stipulated that if any
misconduct were committed during the five-year ad hoc
period, the services of the respondent could be
terminated without holding any inquiry or issuing any
notice. It is submitted that the respondent remained
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irregular in attendance and was unauthorizedly absent
for prolonged periods. Despite being given several
opportunities to improve his conduct, and
notwithstanding the fact that he had submitted an
undertaking not to remain absent without authorization,
he continued to exhibit indiscipline. Consequently, his
services were terminated by order dated 08.02.2012.
Learned advocate Mr.Munshaw submits that the Labour
Court erred in accepting the respondent's bare
contention that his unauthorized absence was due to
medical reasons, in the absence of any supporting
medical certificate or documentary evidence. It is
contended that the Labour Court failed to appreciate the
various notices, reminders, and opportunities afforded to
the respondent, and proceeded to grant relief in his
favour without properly considering the petitioner's
submissions. It is also submitted that the respondent's
repeated unauthorized absence caused serious
administrative difficulties to the petitioner, adversely
affecting public health services, particularly in the area
of solid waste management. Therefore, the impugned
award deserves to be quashed and set aside, and the
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present petition ought to be allowed in the interest of
justice.
6. On the contrary, learned advocate Mr. Aloria, appearing
on behalf of the respondent, though present, was unable
to render effective assistance to the Court. He merely
submitted that no departmental inquiry was initiated
and that the impugned order of termination was passed
in violation of the principles of natural justice.
Accordingly, he prayed for dismissal of the present
petition.
7. Upon consideration of the submissions advanced by the
learned advocates for the respective parties and on
perusal of the record, it emerges that the respondent
was appointed on compassionate grounds in place of his
deceased father as a Safai Sahayak in the Solid Waste
Department of the petitioner Corporation on 01.10.2005.
The said appointment was on an ad-hoc basis for a
period of five years with a fixed monthly remuneration of
Rs. 1,500/-. It was contended by the respondent, in the
statement of claim filed before the learned Labour
Court, that he had proceeded on leave in July 2011 due
to illness. Despite submitting a medical certificate, a
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show cause notice dated 25.07.2011 was issued by the
Deputy Commissioner, calling upon the respondent to
explain why his services should not be terminated due to
prolonged unauthorized absence. The respondent is
stated to have replied to the said notice on 26.07.2011;
nonetheless, his services were terminated by the
petitioner-Corporation.
7.1. The documentary evidence further indicates that a
prior notice dated 22.12.2009 had also been issued to
the respondent, pointing out that he had been on
unauthorized leave since 12.05.2009 and that his
continued absence had adversely impacted the
sanitation work. The said notice called upon the
respondent to show cause as to why disciplinary
proceedings should not be initiated against him. In
response, the respondent submitted a reply on
22.12.2009, admitting his unauthorized leave during the
period from 12.05.2009 to 22.12.2009 and explaining
that the same was due to injuries sustained in an
accident. He assured the authorities that he would
thereafter attend work regularly. The explanation
tendered by the respondent was accepted, and by an
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order dated 04.01.2010, the Deputy Commissioner
directed the respondent to submit an undertaking, which
he did by way of a letter dated 19.09.2009.
7.2. However, it is evident that the respondent again
remained absent from duty from 22.03.2011 onwards.
Consequently, another show cause notice dated
25.07.2011 was issued, seeking an explanation as to why
his services should not be terminated for habitual
absenteeism, which was stated to constitute misconduct
under Section 56(2) of the Bombay Provincial Municipal
Corporations Act, 1949. The said notice allegedly
remained unanswered, and accordingly, an order of
termination came to be passed by the Commissioner,
Rajkot Municipal Corporation, on 08.02.2012. This
termination was subsequently challenged by the
respondent before the learned Labour Court. It was
claimed in the statement of claim that a reply to the
notice dated 25.07.2011 was submitted on 26.07.2011,
however, no such reply was placed on record either
before the Labour Court or this Court. To substantiate
his claim for reinstatement, the respondent relied upon
a medical certificate dated June 2009, various show
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cause notices issued by the Corporation, and
applications dated 16.05.2012 and 19.05.2013
requesting reinstatement, along with communications
addressed to senior officials seeking revocation of the
termination order. The respondent also produced orders
in relation to other employees, namely, Manjulaben and
Vitthal Vijaybhai Makwana, to demonstrate that similarly
situated employees had been reinstated. However, in the
opinion of this Court, such instances cannot form the
sole basis for reinstatement in the absence of any
satisfactory explanation for the respondent's repeated
and habitual absenteeism. It is admitted that the
respondent was given adequate opportunity to improve
his conduct and attend work regularly. Despite having
furnished an undertaking to that effect, he again
absented himself for an extended period, leading to the
termination of his service.
8. This Court has referred the decision rendered by the
Apex Court in the case of in Vijay S. Sathé v. State of
Maharashtra, reported in (2013) 10 SCC 253,
wherein it was held that an employee who does not
report for duty and remains absent for a prolonged
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period cannot be considered as having been
'retrenched'. The Apex Court further observed that while
initial absence may amount to misconduct, continued
absence for an extended period may lead to an inference
of voluntary abandonment of service. In such
eventuality, the contract of employment is deemed to
have come to an end automatically, without requiring
any formal order of termination by the employer. The
Apex Court has relied on the decision rendered in the
case of Jeevanlal (1929) Ltd. v. Workmen, reported in
AIR 1961 SC 1567, wherein it was held that certain
classes of cases involving prolonged unauthorized
absence may justifiably give rise to an inference that the
employee intended to abandon service. The distinction
was drawn between termination by the employer, which
requires a positive act on the employer's part, and
abandonment of service, which is a unilateral act by the
employee, thereby eliminating the requirement for
employer intervention. Consequently, such a case cannot
be treated as 'retrenchment' under the Industrial
Disputes Act. It was further clarified that abandonment
or relinquishment of service is essentially a question of
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intention, and such intention cannot ordinarily be
attributed to an employee in the absence of adequate
evidence. The only argument advanced before this Court
on behalf of the respondent was that no departmental
inquiry was conducted. However, reference is also made
to the decisions of the Apex Court in Syndicate Bank
Vs. General Secretary, Syndicate Bank Staff
Association & Anr., reported in (2000) 5 SCC 65, and
Aligarh Muslim University and Others Vs. Mansoor
Ali Khan, reported in (2000) 7 SCC 529, wherein it
was held that if an employee remains absent beyond the
maximum period for which leave of any kind could be
granted, he shall be deemed to have voluntarily resigned
from service. In such cases, it was held that holding an
inquiry or issuing a show-cause notice would be an
empty formality, and hence not mandatory.
9. Having regard to the aforesaid decisions and the
reasoning assigned by the learned Reference Court, this
Court is of the considered opinion that the impugned
award is liable to be set aside, as the relief of
reinstatement has been granted solely on the ground
that the respondent's services were terminated without
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holding a departmental inquiry.
10. Resultantly, Special Civil Application No. 3215 of 2020 is
allowed, and Special Civil Application No. 65 of 2020 is
hereby dismissed.
11. Order passed by the learned labour court at Rajkot dated
09.07.2019 is set aside.
12. Rule is made absolute in Special Civil Application No.
3215 of 2020.
13. Rule is discharged in Special Civil Application No. 65 of
2020.
(M. K. THAKKER,J)
NIVYA A. NAIR
