Bhanubhai Bawabhai Rathwa vs Management of Gujarat Refineryindian Oil Corporation

M.R. Shah, J.—By way of this petition under Article 227 of the Constitution of India the Petitioner-workman has prayed for an appropriate writ, order or direction quashing and setting aside the impugned judgment and award dated 14/06/2002 passed by the Industrial Tribunal, Vadodara in Reference (I.T.C.) No. 5/1991 by which the Industrial Tribunal has rejected the Reference, in which the Petitioner ha challenged his alleged termination and requested to reinstate him with full back wages and continuity in service.

It appears that the Petitioner was serving as Electric Maintenance Helper with the Respondent-Gujarat Refinery and despite number of notices calling upon the Petitioner to resume the duty the Petitioner remained unauthorisedly absent for the period between 09/06/1988 to 20/06/1988, 06/07/1988 to 30/08/1988, 19/09/1988 to 26/09/1988 and from 28/09/1988 to 08/03/1989. The Petitioner was served with the notice dated 08/03/1989 informing the Petitioner that despite letters/communication dated 01/12/1988 to resume the duty by 08/12/1988 with satisfactory explanation for absence and despite another opportunity given to the Petitioner to resume the duty on 21/12/1988 vide communication dated 13/12/1988 Petitioner failed to resume the duty even by the extended the date and, therefore, the Petitioner was informed by the aforesaid communication dated 08/03/1989 that in terms of Clause 14 of the standing orders the Petitioner is deemed to have lost the lien on the post and accordingly the name of the Petitioner has been struck off the rolls of the Corporation and he is ceased to be the employee of the organization with effect from 08/03/1989. After a period of approximately two years the Petitioner raised an industrial dispute challenging his termination being aggrieved and dissatisfied with the communication dated 08/03/1989, which was referred to the Industrial Tribunal, which was numbered as Reference (I.T.C.) No. 5/1991 and on appreciation of evidence and considering the facts and circumstances of the case narrated hereinabove and even considering his past misconduct/defaults of remaining unathorisedly absent, the Industrial Tribunal dismissed the Reference. Being aggrieved and dissatisfied with the impugned judgement and award passed by the Industrial Tribunal the Petitioner has preferred the present Special Civil Application under Article 227 of the Constitution of India.

Shri Mukesh Rathod, learned advocate appearing on behalf of the Petitioner has submitted that assuming that the Petitioner was unauthorisedly absent, the Respondent was required to hold departmental inquiry in the present case and admittedly, departmental inquiry has not been initiated prior to the communication dated 08/03/1989. The Industrial Tribunal ought to have allowed the Reference by quashing and setting aside the communication/letter dated 08/03/1989 and ought to have passed an order directing the Petitioner to reinstate the Petitioner with full back wages and continuity in service and, therefore, it is requested to allow the present petition. No. other submissions have been made.

The present petition is opposed by Ms. Mauna Bhatt, learned advocate appearing on behalf of the Respondent. It is submitted that number of opportunities were given to the Petitioner to resume the duty. However, the Petitioner neither resumed the duty nor the Petitioner gave satisfactory explanation about absentism, and, therefore, considering the standing order, which was applicable, the name of the Petitioner was struck off from the roll of Corporation. It is submitted that in the aforesaid admitted facts and circumstances of the case, when earlier also in the year 1987 the Petitioner had remained unauthorisedly absent for which he was twice punished by withholding increments, it cannot be said that the action of the Respondent of removing the name of the Petitioner by striking off his name from the roll of the Corporation is in any way illegal. It is submitted that in the facts and circumstances of the case, more particularly, when the industrial dispute was raised after a period of approximately two years, No. illegality has been committed by the industrial tribunal in rejecting the Reference, which calls for interference of this Court in exercise of powers under Article 227 of the Constitution of India.

4.1. Ms. Bhatt, learned advocate appearing on behalf of the Respondent has relied upon the decision of the Hon''ble Supreme Court in the case of PUNJAN and SIND BANK and Ors. v. SAKATTAR SINGH reported in 2001 LLR 155 in support of her submission to dismiss the present petition.

Heard the learned advocates appearing on behalf of the respective parties at length. It is not in dispute that the Petitioner had remained absent for the aforesaid periods without getting his leave sanctioned and/or even without producing any medical certificates. Number of notices were issued upon the Petitioner calling upon him to resume the duties and to explain his earlier absence, however, the Petitioner failed to resume the duty. From the deposition of the Petitioner it appears that the Petitioner has admitted that he has remained unauthorisedly absent and/or had remained unauthorisedly absent without leave. It appears that from time to time the Petitioner has changed his defense for remaining unauthorisedly absent. Considering the above, when despite various notices calling upon the Petitioner to resume the duty, failing which his name was to be struck off and he was to lose the lien, the Petitioner did not resume the duty, thereafter, vide communication dated 08/03/1989 considering Clause 14 of the standing orders when his name was struck off from the rolls of the Corporation, it cannot be said that the same was illegal. On appreciation of evidence, the Industrial Tribunal has held the action of the Respondent Corporation as legal and in consonance of the standing orders and it is specifically held that number of opportunities were given to the Petitioner to resume the duties and his explanation were also sought. Considering the above, when the Industrial Tribunal dismissed the Reference, it cannot be said that the Industrial Tribunal has committed any error and/or illegality, which calls for the interference of this Court in exercise of powers under Article 227 of the Constitution of India.

It is to be noted that earlier also in the year 1987 the Petitioner was found to be in unauthorisedly absent for which he was punished twice by withholding increments, still, the Petitioner continued to remain unauthorisedly absent. It is also required to be noted that even the industrial dispute was raised after a period of approximately two years, which shows that for whatever reason the Petitioner was not interested in resuming the duty. Considering the aforesaid overall facts and circumstances of the case, the contention of the Petitioner that departmental inquiry was not initiated and, therefore communication dated 08/03/1989 was required to be quashed and set aside and/or is illegal cannot be accepted. In the aforesaid admitted facts and circumstances of the case, the aforesaid cannot be accepted.

In view of the above and for the reasons stated hereinabove, the present petition fails and deserves to be dismissed and is accordingly dismissed. Rule is discharged.