1. These two petitions arise out of common controversy. They have been heard together and are being disposed of by this common judgement.
2. Special Civil Application No. 1877 of 2004 is filed by Gujarat State Road Transport Corporation (hereinafter to be referred to as the 'S.T. Corporation'). In such petition, the Corporation has challenged an order dated 20.02.2000 passed by the Conciliation Officer refusing to grant approval to the dismissal order dated 01.09.2001 passed by the S.T. Corporation against the respondent Vrijlal Chimanlal Dave (hereinafter to be referred to as the 'workman').
3. The workman has filed Special Civil Application No. 15028 of 2003 against S.T. Corporation praying for the directions to the Corporation to pay benefits of provident fund, gratuity, pension, leave salary etc. to the workman on his crossing the age of superannuation and also for payment of actual salary for the intervening period.
4. The workman was engaged by the S.T. Corporation as a Conductor. He discharged his duties between 1971 and 2001. On 20.09.2000, he was served a charge-sheet alleging that from 19.08.2000, he had remained unauthorizedly absent without leave report or intimation. The S.T. Corporation ultimately dismissed the workman from service on such ground by an order dated 01.09.2001.
5. Promptly since other disputes between the parties were pending before the Conciliation Officer, the S.T. Corporation moved an application seeking approval of the dismissal of the workman as required under Section 33(2) (b) of the Industrial Disputes Act.
6. Such approval application was fixed for hearing by the Conciliation Officer on 15.01.2001. On such date, since the management was not present before the Conciliation Officer, the proceedings were adjourned to 29.01.2002 and once again for the same reason to 19.02.2002. On such date also since there was no representation on the part of the S.T. Corporation, the Conciliation Officer passed his impugned order dated 20.02.2002 and dismissed the approval application holding that the management was not interested in pursuing the same.
7. Upon coming to know of such an order, the S.T. Corporation moved an application dated 26.02.2002 before the Conciliation Officer and requested for recall of his order. While such request was not accepted, the S.T. Corporation filed the present petition.
8. In the meantime, since despite rejection of the approval application, the S.T. Corporation did not reinstate the workman or post his crossing age of superannuation, did not pay any retiral benefits, the workman filed Special Civil Application No. 15028 of 2003 and made the prayers noted hereinabove.
9. From the record it thus emerges that the workman was dismissed from service on the alleged ground of unauthorized absence for the period between 19.08.2000 to 20.09.2000. Nothing is brought on record either from the charge-sheet itself or any other contemporaneous material to suggest that either the service of the workman during 30 long years was not satisfactory or he had been found chronic to remain absent without leave. At least from the charge-sheet no such past conduct emerges. In short, therefore, after more than 30 years of satisfactory services, the S.T. Corporation dismissed the workman for remaining absent without leave for a bare period of one month.
10. The conduct rules of the management and the service jurisprudence recognize various grades of punishment for different levels of misconduct. Such punishment range from a mere caution or a warning to dismissal. A choice of punishment though rests largely with the employer, it is well recognized that for every and any misconduct proved, the severes punishment of dismissal is not necessary or called for.
11. These observations I am prompted to make because of the peculiar facts on record and certain developments which took place after the petitions were filed. What is peculiar about this litigation is that after having dismissed the workman from service, approval application, which the S.T. Corporation filed before the Conciliation Officer, came to be dismissed for non-appearance by the representative of the Corporation before the Conciliation Officer. Such order passed in February 2002 came to be challenged before this Court in the year 2004. In the meantime, the Corporation did not take the workman back in service. The workman crossed the age of superannuation on 31.12.2002 and I am told that he expired on 05.10.2005. His widow is thus claiming post retiral benefits on the basis of service rendered by him.
12. In view of above facts, I am of the opinion that no useful purpose would be served in setting aside the order passed by the Conciliation Officer and to restart a long drawn legal battle. Allowing the Corporation's appeal would place back the parties to a stage where the approval application before the Conciliation Officer would get revived. After as many as ten years of the date of passing of the impugned order by the Conciliation Officer, I find it wholly unconscionable to do so. Even if such application is revived in the long drawn further proceedings would commence. I find it wholly inappropriate to subject the widow of the workman to such draggery. The very purpose of requiring approval of a penal action is that the workman may not be dismissed in view of other pending dispute. If despite the approval aplication having been rejected; even if in absence of the employer, the workman is not to be re-employed for years together, it would frustrate the very basic purpose. More so, when the order of dismissal was founded on the allegation of absence without leave for a period of one month. When the workman had discharged duty for nearly 30 years without complaint, even otherwise it is wholly doubtful whether such dismissal order could have been passed in law. Considering such peculiar facts, I am not inclined to accept S.T.Corporation's payer for reopening the proceedings from the stage of the approval application itself. However, while doing so, some adjustments and molding of the relief would be necessary. Effectively, the view that I am taking would result into ineffectiveness of the order of dismissal achieving finality. Considering the fact that the workman did not discharge active duty for the period when he was under dismissal by order dated 01.09.2001 till his crossing the age of superannuation on 31.10.2002, I am of the opinion that the S.T.Corporation should not be asked to pay salary for such period. The entire period, however, must be treated as having spent on duty for all other purposes including the increments, if any due, pensionery and all other retiral benefits as may be available under the rules.
13. Under the circumstances, while dismissing the Special Civil Application No. 1877 of 2004 of the S.T.COrporation, it is provided that the workman shall not draw salary for the period between 01.09.2001 and 31.10.2002.
14. Insofar as the Special Civil Application No. 15028 of 2003 filed by the workman is concerned, in view of the dismissal of Special Civil Application No. 1877 of 2004 of the S.T.Corporation, the widow of the workman would now receive all the benefits which have been hither to withheld as if the order of dismissal has never been passed barring the payment of actual salary for the period mentioned above. Such benefits shall be released expeditiously, and in any case, not later than 10.11.2012.
JYOTI [AKIL KURESHI, J.]