Ahmedabad Municipal Transport Services vs Saraswatiben Poonamchand Chauhan

S.R. Brahmbhatt, J.—Heard learned counsels for the parties.

The petitioner Ahmedabad Municipal Transport Services has assailed the order in award dated 31/5/2006 passed by the Presiding Officer, Labour Court, Ahmedabad in Reference (LCA) No. 2117 of 1992 partly allowing the reference, setting aside the order of dismissal dated 28/9/1988 dismissing him from service from 1/10/1988 and granting him back wages to the respondent workman from 1/10/1988 to 2/9/2002 i.e. The date on which the workman passed away.

Facts in brief deserve to be set out as under:

The respondent workman while serving as driver in the petitioner Corporation could not attend his duties and he has put in 29 years service as driver. He could not attend his duties on account of his serious illness of tuberculosis, however the requisite medical certificate could not be produced in time, and therefore, charge sheet came to be issued for his unauthorised absence from 30/10/1986 to 28/11/1986 namely for 30 days mentioned in the charge sheet. The notices for inquiry remain unserved on account of change of residence which was not intimated to the Corporation and ultimately by way of punishment the order of dismissal came to be passed on 30/9/1988. This order of dismissal was assailed and demand was raised for reinstatement which was referred to the competent Court wherein it was marked as Reference (LCA) No. 2117 of 1992. The Labour Court after perusing the relevant documents and evidence on record came to the conclusion that penalty of dismissal was disproportionate especially in view of the fact that the workmen did produce medical certificate indicating his serious ailment as recorded by the inquiry authority. The Labour Court in view of the totality of the facts & circumstances awarded continuity of service and ordered payment of complete back wages till the date of his demise. Counsels have pointed out during submissions that in fact the workman attained the age of superannuation on 31/8/1996 and therefore naturally the award with regard to payment of wages till 2/9/2002 is to be read accordingly.

Shri Munshaw learned Counsel for the petitioner vehemently submitted that the workman when he was suffering from such serious ailment could not have imposed requirement of intimating the department about his ailment and his inability to remain present for discharging his duties as driver. ''Who Cares'' attitude evinced by the workman during the period of absence and the inquiry go to show that the workman did not deserve any sympathy. However Shri Munshaw had to submit that the charge sheet is only for the period of 30 days mentioned in the charge sheet for which workman is said to have remained unauthorisedly absent. The other days of absence have been pressed into service in order to point out the tendency on the part of the workman. Shri Munshaw submitted that the award therefore deserve to be quashed and set aside and the order of penalty of dismissal deserve to be restored.

Shri Vaishnav, learned Counsel for the workman submitted that the findings of the Labour Court go to show that the certificate from the competent authority indicating the ailment was on record, may be during inquiry or there after, but that in itself would not be so serious a conduct as to warrant dismissal from service, especially when the medical certificate referred to by the inquiry officer have remained unchallenged. Shri Vaishnav relying upon the decision of the Apex Court in case of Pepsu Road Transport Corporation v. Rawel Singh reported in 2008 AIR SCW 2099 submitted that the misconduct of remaining absent for 30 days was certainly a misconduct not warranting punishment of dismissal from service. Especially not so when the delinquent was actually prevented from remaining present on account of serious ailment like tuberculosis. It is not the case of anyone that the workman did not suffer from tuberculosis. Shri Vaishnav submitted that at the same time as the period of uauthorised absence is 30 days in the interest of justice this Court may pass appropriate order including modification of award so as to meet with the end of justice and equity.

This Court has heard learned counsels for the parties and perused the award impugned. The findings of the Labour Court recorded in para No. 10 & 11 go to show that the factom of workman suffering from tuberculosis had remain unchallenged. The inquiry officer has made reference to medical certificate indicating the ailment suffered by the workman. The workman''s conduct of not indicating his change in residence & address coupled with his unauthorised absence for a period of 30 days would be required to be examined in the light of relevant provisions as well as the decision of the Apex Court in case of Pepsu Road Transport Corporation v. Rawel Singh (supra). The fact remains to be noted that the petitioner has not pointed out any provision of Standing Order or Rule requiring employees to submit intimation of their leave in advance. However the workman who was a driver was expected of atleast send-in some intimation which unfortunately has not come forward on the record. At the same time the Court need to be mindful of the fact that serious ailment of tuberculosis is said to have been the case for absence and the requisite medical certificates have been referred to by the inquiry officer. Bearing-in-mind the observation of the Apex Court in case of Pepsu Road Transport Corporation v. Rawel Singh (supra) and the peculiar facts & circumstances of the case on hand, this Court is of the view that the award impugned deserves to be modified so as to meet with the end of justice. The order of dismissal has rightly been set aside. However looking to the conduct of the respondent workman and in totality of the facts & circumstances attending the case, this Court is of the view that, denial of back wages completely would have sufficient punishment for such misconduct, so to say.

Therefore, in the result, the order so far as it set asides the dismissal is confirmed. The award with regard to back wages only is set aside. The petitioner would be now required to calculate on that basis the dues admissible to the workman as if he retired in service on attaining the age of superannuation on 31/8/1996 and the wages for the period from the date of dismissal to that of age of retirement would not be payable as stated herein above.

The petition therefore is partly allowed. Rule made absolute to the aforesaid extent. There shall be no order as to cost.

Shri Vaishnav at this stage made a request that the dues now become payable be paid expeditiously. It goes without saying that the authority would bear-in-mind that the workman is no more and therefore, heirs may not have to suffer deprivation of money for longer.