JAYESH KUMAR NARSINHBHAI VAGHELA Vs. DIVISIONAL CONTROLLER GSRTC

JUDGEMENT

(1.) The petitioner was a conductor in the Gujarat State Road Transport Corporation. He was subjected to charge sheet and after inquiry he was dismissed on 26.9.1991. The petitioner raised a dispute and the reference was made to the Labour Court. The Labour Court, Ahmedabad has passed the impugned award dated 1.3.1995 in Reference (LCA) No.1890 of 1992 which is under challenge in this petition at the instance of the petitioner workman. The Labour Court found the charge to be proved but held that the punishment of dismissal was excessive. The Labour Court found that the punishment was disproportionate in the facts and circumstances of the case and accordingly it was considered that stoppage of one grade-in, crement with cumulative effect shall be adequate punishment and as such the punishment of dismissal was reduced to that of stoppage of one grade increment with cumulative effect while maintaining the continuity of service of the petitioner and directed his reinstatement rejecting the claim for the backwages. Mr. K.V. Gadhia appearing for the petitioner has submitted that once the punishment of stoppage of one grade increment with cumulative effect had been imposed he should not have been denied the backwages for the entire period and therefore the punishment is still excessive and backwages ought to have been paid to the petitioner. Mr. Munshaw appearing on behalf of the corporation has submitted that it was not simply a case of one default against the petitioner in which the present order had been passed. There were 18 defaults against him prior to the default in question and even thereafter he had committed one more default and therefore to say that as in the present case charge was only to reissue two tickets for Rs. 2/- each could not have any telling effect on the question of the quantum of the punishment.

(2.) In the facts and circumstances of the case, I find that the reduced punishment i.e. stoppage of one grade increment with cumulative effect instead of dismissal as was found to be adequate by the Labour Court is in order. Whereas the petitioner has not been exonerated from the charge of misconduct there is no question of claiming backwages as a matter of right and the Labour Court has thought it proper to deny the claim of the backwages for the entire period and I do not find any basis to interfere with the rejection of the claim of the backwages.

(3.) In the affidavit-in-reply dated 5.7.1996 filed on behalf of the respondent corporation, it is stated that pursuant to the order of the Labour Court, the petitioner has already been reinstated in the service vide order No.677 of 1995 dated 29.7.1995, and further that while passing this order relying upon Rule 69 dated 29.4.1969 and instructions issued vide circular dated 11.2.1954, the petitioner's salary has been fixed at Rs. 1,070/- with effect from 12.5.1995 as it was at the time of dismissal from the service. Because no backwages have been granted and only continuity in the service has been granted with the relief of reinstatement. The case of the respondent corporation is that the period for which the petitioner has remained out of employment on account of the dismissal cannot be counted for the purpose of increment and therefore no increments had been granted to the petitioner for the period on and from 27.9.1991 to 11.5.1995 because it had been granted as leave without pay.Mr. K.V. Gadhia for the petitioner has submitted that this order dated 29.7.1995 is not a faithful and punctual compliance of the order with regard to the continuity of service in as much as the denial of backwages for the period from September, 1991 to May, 1995 as stated above cannot mean the denial of increments for this period when the relief of continuity of service has been granted. I have considered the rules and instructions on which the reliance has been placed by the corporation while passing the order dated 29.7.1995 and having heard Mr. Munshaw and Mr. Gadhia, I am of the considered opinion that these rules and instructions do not cover the cases of the present nature, lest, it would mean the loss of about four increments in addition to the stoppage of one annual grade increment which had been ordered to be stopped with cumulative effect by the Labour Court in lieu of dismissal and relief of continuity of service would be truncated in as much as the petitioner would lose increments for the service period of 27.9.1991 to 11.5.1995. All that is required to be done is to grant increments to the petitioner for this period i.e. 27.9.1991 to 11.5.1995 without actually paying the amount on account of these increments but the petitioner's salary is to be fixed notionally on 11.5.1995, as if he had earned the increments for this period but the stoppage of one annual grade increment with cumulative effect is also to be given effect to and thereafter on the basis of notional fixation of his pay as such on 11.5.1995 the petitioner has to be paid the salary from 12.5.1995 onwards. That would not mean the payment of any amount of increment as part of backwages or otherwise and in fact no amount is required to be paid for any period on and from 27.9.1991 to 11.5.1995 but notional fixation of salary has to be made as if he had earned the increments but one increment is to be stopped with cumulative effect as ordered by the Labour Court, lest, the purpose of relief of continuity of service would stand partly defeated. The Corporation has therefore to issue revised order so as to fix the petitioner's salary upon his reinstatement on the guidelines as above in this order. This position had to be made clear in this order because the corporation itself came with the case that by passing the order dated 25.7.1995 it had fully complied the order passed by the Labour Court and I found ample force in the argument of Mr. Gadhia that it was not at all faithful, punctual, correct, legal and full compliance of the Labour Court's order keeping in view the relief of continuity of service. This Special Civil Application is decided accordingly with a direction to the corporation to issue revised order in place of the order dated 29.7.1995 in accordance with the directions mentioned herein above and to pay due amount of arrears to the petitioner at the earliest but in no case later than a period of three months from the date the certified copy of this order is served upon the respondent. The award passed by the Labour Court is of course sustained and the notice is hereby discharged.