Municipal Borough of Talod Vs. Manubhai Khodidas Rajgor and anr. - Court Judgment

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labour and industrial - dismissal - section 17b of industrial disputes act, 1947 - labour court directed to reinstate workman with back wages - petition against order passed by labour court - workman is not interested in service - he is gainfully employed and earning more than what he is to get by way of salary - evidence on record proved that workman is in habit of remaining absent without leave - order passed by labour court liable to be set aside. - ravi r. tripathi, j.1. being aggrieved of the judgement and award dated 28th february, 2001 passed by the labour court, himmatnagar in reference (lch) no.2 of 1996, talod nagar panchayat (as it then was) has preferred the present petition.2. initially, notice was issued by this court on 11th january, 2002. thereafter, the matter was adjourned from time to time and on 9th august, 2002, this court (coram:p.b.majmudar, j.) passed the following order:'in spite of notice of this court, the respondent has not cared to appear before this court. rule returnable on 4th september, 2002. meanwhile, execution and operation of the impugned award is stayed on condition that the petitioner will comply with the provisions of section 17-b of the industrial disputes act from the date of the award. the concerned workman may file necessary affidavit as required by section 17-b of the act. on his filing such affidavit, the petitioner will comply with the provisions of section 17-b of the act and the benefit will be given from the date of the award.'the process of rule was also served to the respondents on 3rd september, 2002. a report of the bailiff dated 4th september, 2002 is on the record of the case. despite service of the process of rule, the respondents have chosen not to remain present before this court.3. the facts of the case are that the respondent no.1 was appointed by an order dated 1st october, 1980 on temporary basis as a peon. the respondent no.1, without assigning any reason and without getting his leave sanctioned, remained absent from 31st october, 1981. the petitioner, therefore, issued two letters dated 3rd february, 1981 and 5th february, 1981 asking for explanation from respondent no.1-workman. the respondent no.1 filed his reply on 24th february, 1981, which was accepted by the petitioner-municipality, and as the respondent no.1-workman had prayed for pardon and had given an undertaking not to repeat such conduct in future, the respondent no.1-workman was issued only warning and penalty of one day absence was imposed on him. the respondent no.1-workman again remained absent on 18th september, 1981. again, his explanation was sought for and he filed an undertaking to the effect that he will not repeat such conduct in future; he was fined rs.5/- and a warning was issued to him with one day absence. on 12th october, 1981, again he remained absent and the same story was again repeated, namely, he accepted the charge, prayed for mercy and pardon and filed an undertaking not to repeat such conduct. thereafter, again on 18th december, 1981, he remained absent without leave and without any intimation and when his explanation was called for and he was called upon to report on duty, he neither tendered any explanation nor reported for duty. he remained absent for about two months between his appointment i.e. 23rd october, 1980 and termination of his services on 31st january, 1982. before terminating his services, the petitioner-municipality issued a show cause notice dated 8th january, 1982 calling upon respondent no.1-workman as to why his services should not be terminated. a copy of the same is produced at annexure-e to the petition, which was also produced before the learned judge of the labour court at exh.44.the respondent no.1-workman approached the labour court with a case, as set out in paragraph-3 of the judgement and award, that by resolution no.498:a of talod nagar panchayat (as it then was) dated 30th september, 1980, he was appointed. the appointment was on probation for a period of one year from the date of appointment i.e. 1st october, 1980. from 1st october, 1980 to 4th december, 1981, he regularly discharged his duties and on 4th december, 1981, on account of illness, he had gone to his native village-santalpur for taking treatment and, therefore, he could not discharge his duties with the petitioner; that on 21st june, 1982, when he recovered from his illness, he reported for duty at talod by giving joining report; that the president of talod nagar panchayat (as it then was) asked the respondent no.1-workman to produce the certificate from the government hospital; that on 21st june, 1982, he produced a certificate of the government doctor and filed a report to allow him to resume duty; and at that time, he was informed by the authorities that his services are brought to an end.the respondent no.1-workman has challenged the action of the petitioner on the ground that he is not given any show cause notice; that the action of the petitioner is violative of the principles of natural justice; and, that he worked for one year and four months and completed his probation period and was discharging his duties on permanent basis. the respondent no.1-workman prayed for the reinstatement and arrears of salary. he also filed application-exh.8 for condonation of delay. the said reference was contested by the petitioner by filing reply, being exh.18. the petitioner put forward its case and submitted that as the respondent no.1-workman was in the habit of remaining unauthorisedly absent, after the decision was taken in the meeting dated 31st december, 1981, being resolution no.311, a final notice dated 8th january, 1982 was issued and his services were brought to an end with effect from 31st january, 1982. it was also stated by the petitioner before the learned judge of the labour court that respondent no.1-workman has no interest in serving the petitioner as he is running a tea kettle, which is in the name of his father and placed on the panchayat's land, and is earning more than what he is to get by way of salary.4. mr.d.a.bambhania, learned counsel for the petitioner, invited the attention of the court to the relevant part of the impugned judgement and award of the learned judge wherein interestingly, the learned judge, after having recorded all the findings in favour of the petitioner, namely, respondent no.1-workman has not produced the certificate issued by santalpur public dispensary; that it cannot be believed that a person can be ill for such a long time; and, that respondent no.1-workman had written a letter dated 24th february, 1981 admitting that a mistake is committed by him and he will not be careless in future, therefore, his mistake may be pardoned. the learned judge has also recorded that due to the habit of remaining unauthorisedly absent, the respondent no.1-workman had remained absent on 25.05.1981, 27.06.1981, 22.08.1981 to 23.08.1981, 04.10.1981, 13.10.1981, 01.11.1981 to 06.11.1981 and 15.11.1981; that the petitioner had issued show cause notices on various dates; that since 4th december, 1981, the workman had remained absent without getting the leave sanctioned; and, that on 18th december, 1981, two letters were sent to respondent no.1-workman and despite that, he did not report for duty and, therefore, by a resolution passed in the meeting dated 31st december, 1981, his services were brought to an end. finally, it is recorded by the learned judge that it is proved from the evidence on record of the case that respondent no.1-workman is in the habit of remaining absent without leave.5. the learned judge, after having recorded all these findings, has taken note of the contentions of respondent no.1-workman that the respondent no.1-workman had completed his probation period and, therefore, he is a permanent employee; and, that the petitioner has not conducted any departmental inquiry and, therefore, the action of the petitioner of terminating the services of respondent no.1-workman is in violation of the principles of natural justice. the learned judge has then recorded that by exh.54 filed by the petitioner, willingness to allow the respondent no.1-workman to join the service; and, that by exh.48, respondent no.1-workman has given a purshis to report for duty, but then, respondent no.1-workman was insisting for back-wages while the petitioner was willing to allow him to report on duty only without back-wages. thus, the fact that the petitioner had given an opportunity to resume duty, is borne out from the record of the case. thereafter, in disregard of all the aforesaid findings, the learned judge has recorded a line that, `respondent no.1-workman is entitled for the back-wages of the intervening period' and has allowed the reference of respondent no.1-workman against the petitioner, ordering `reinstatement on the original post with continuity of service with 25% back-wages' and has also directed that the said award be implemented within 30 days from the date of the publication of the same.6. mr.d.a.bambhania, learned counsel for the petitioner, submitted that the judgement and award is vitiated inasmuch as the learned judge, after having recorded the findings in favour of the petitioner, without assigning any reason, has held that the action of the petitioner of terminating the services of respondent no.1-workman is illegal.7. on perusal of the judgement and award, it is clear that the learned judge has committed an error in passing the final order as the same is not consistent with the findings recorded on the basis of the evidence on the record of the case. from the fact that despite service of the notice of this court issued on 11th january, 2002 and despite service of process of rule issued on 9th august, 2002, the respondent no.1-workman has not chosen to remain present before this court, an inference can be drawn that respondent no.1-workman is not interested in service as it is contended that he is gainfully employed and earning more than what he is to get by way of salary. after having considered all the aspects of the matter, this court is of the opinion that the petition deserves to be allowed. the same is, accordingly, allowed. the judgement and award dated 28th february, 2001 passed by the labour court, himmatnagar in reference (lch) no.2 of 1996 is hereby quashed and set aside. rule is made absolute. no order as to costs.