1. By way of this petition under Articles 226 and 227 of the Constitution of India, petitioner-Gujarat State Road Transport Corporation (hereinafter referred to as the 'Corporation' for the sake of brevity), has challenged the legality and validity of judgment and award dated 03.04.2002 passed by the Presiding Officer, Labour Court, Kalol in Reference (LCK) No.89 of 1994 whereby, the Presiding Officer, Labour Court, Kalol was pleased to pass award of reinstatement with continuity of service and 50% back wages.
2. The facts which can be culled out from the record of this petition are as under.
2.1.
That the respondent-workman was appointed as conductor under Badge No.1534 and was posted at Bahucharaji Depot at Mehsana Division. It is a matter of record that while in service, the respondent remained absent unauthorisedly from 28.10.1992 for which, he came to be chargesheeted and after an inquiry, he was dismissed from service by order dated 19.04.1993.
2.2.
It is also a matter of record that the petitioner-Corporation gave notice on 21.11.1992 and as no reply was given by the respondent, the chargesheet was issued on 18.12.1992. However, the respondent did not respond to the same.
2.3.
Being aggrieved by the order of dismissal, the respondent filed departmental appeal which was also dismissed. Thereafter, the respondent raised dispute and as the same could not be resolved, the same was referred to the Presiding Officer, Labour Court, Kalol and registered as Reference(LCK) No.89 of 1994.
3. The petitioner-Corporation as well as the respondent-workman appeared before the Labour Court and after considering the evidence on record, the Labour Court, vide impugned judgment and award dated 03.04.2002, was pleased to pass award of reinstating the respondent with continuity of service and 50% back wages.
4. Being aggrieved by the said judgment and award, the petitioner has preferred the present petition wherein, this Court (Coram: Ravi R. Tripathi, J.) vide order dated 28.01.2003, was pleased to admit the matter and grant interim stay qua back wages.
5. It is however, an admitted position that in spite of the fact that there was an order of reinstatement, the petitioner did not reinstate the respondent. It is also a matter of record that the respondent, pending the present petition, expired on 05.01.2005 and by order dated 23.06.2005 passed in Civil Application No.1645 of 2005, the legal heirs of the deceased-respondent have been brought on record as party respondents.
6. Heard Mr.Dipen Desai, learned counsel for the petitioner and Mr.Mukesh H. Rathod, learned counsel appearing with Mr.G.K. Rathod for the respondent.
7. Mr.Desai, learned counsel has taken this Court through the factual matrix of the petition and submitted that the Labour Court has failed to appreciate the fact that the respondent-workman had committed misconduct of illegal and unauthorised absentism for a long time and, therefore, the Labour Court has committed error in coming to the conclusion that the punishment of dismissal is disproportionate to the misconduct. Mr.Desai, learned counsel submitted that the respondent has failed to adduce any evidence on record before the Labour Court to establish the fact that he was absent because of certain compelling reasons and under any such circumstances, it cannot be said that unauthorised absentism would not amount to misconduct. However, the respondent has miserably failed to adduce any evidence to prove his innocence. Mr.Desai, learned counsel submitted that without there being any evidence, the Labour Court has committed error apparent on the face of the record in arriving at the conclusion that the order of dismissal was not legal and proper. Mr.Desai, learned counsel further submitted that the Labour Court has also committed error apparent on the face of the record by awarding 50% back wages without assigning any reasons for coming to the conclusion that the respondent is entitled to back wages to the tune of 50%. Mr.Desai, learned counsel, therefore, submitted that the petition deserves to be allowed and the impugned judgment and award passed by the Presiding Officer, Labour Court, Kalol deserves to be quashed and set aside.
8. Per contra, Mr.Rathod, learned counsel appearing for the legal heirs of the deceased respondent has supported the judgment and award passed by the Labour Court. Mr.Rathod, learned counsel submitted that in spite of the fact that while admitting the present petition, this Court has not granted any stay against reinstatement, the petitioner did not reinstate the respondent-workman and thus, the petitioner has not complied with the award of the Labour Court without any justifiable reasons. Mr.Rathod, learned counsel submitted that in such circumstances, the petitioner is not entitled to any discretionary relief as tried to be canvassed by Mr.Desai, learned counsel for the petitioner. Mr.Rathod, learned counsel submitted that the reasons of the Labour Court in the impugned award are based on correct appreciation of evidence on record. Mr.Rathod, learned counsel submitted that thus, the petition is meritless and deserves to be dismissed. Mr.Rathod, learned counsel however, candidly submitted that in case if this Court comes to the conclusion that the Labour Court has committed error apparent on the face of the record in granting back wages to the tune of 50%, the legal heirs of the deceased-respondent are not desirous of inviting any reasons for the same.
9. Considering the submissions made by both the learned counsel and perusing the impugned judgment and award, it appears that the Labour Court has committed no error, much less any error, apparent on the face of the record in coming to the conclusion that the allegations levelled in the chargesheet are without any basis. It is also found that the Labour Court, after considering even the previous conduct of the respondent whereby, the respondent had committed only one default in a long tenure of 14 years, has rightly come to the conclusion that the punishment of dismissal was disproportionate. The Labour Court has also, on the basis of the communication at Exh.20, come to the conclusion that the respondent could not remain present because of the marriage of the daughter of the respondent. Thus, this Court finds no error in the impugned judgment and award as far as the reinstatement is concerned.
10. However, as the respondent-workman has expired as noted hereinabove, the question of reinstatement of the respondent does not arise in the present case. However, even though, no stay was granted by this Court while admitting the present petition, the petitioner-Corporation has admittedly not reinstated the respondent-workman and, therefore, the respondents, being legal heirs of deceased-workman, are entitled to the wages and all other benefits as per the award including retiral benefits, if any applicable, from the date of the award till 05.01.2005, the date on which the respondent-workman expired.
11. However, on perusal of the impugned award, the Labour Court has merely relying upon the oral deposition of the respondent, come to the conclusion that the respondent-workman was not gainfully employed elsewhere and, therefore, was entitled to 50% back wages. Such a finding is an error apparent on the face of the record. However, as noted above, as the reasons are not invited, no further consideration is required in the present judgment.
12. Resultantly, the petition is partly allowed. Order of reinstatement is confirmed. However, as noted above, the legal heirs of respondent-workman shall be entitled to the benefits arising from reinstatement as per the impugned judgment and award with continuity of service till 05.01.2005, the date on which the respondent expired, along with the retiral benefits, if applicable.
13. However, the award qua 50% back wages is hereby quashed and set aside. The award passed by the Labour Court is modified accordingly.
14. In light of the above observations, it is expected that the petitioner-Corporation shall pay the amount of wages from the date of the award till 05.01.2005, the date on which the respondent expired, as expeditiously as possible preferably by 31.07.2012.
15. The petition is partly allowed. Rule is made absolute only to the aforesaid extent. No order as to costs.
(R.M.CHHAYA, J.) Hitesh Top