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Public Service, Nature Of Misconduct Of Employee Significant Considerations U/S 11 Industrial Disputes Act: Gujarat High Court
PRIYANKA PREET
23 Feb 2022 2:11 PM IST
The Gujarat High Court has held that while exercising its powers under Section 11A of the Industrial Disputes Act, 1947, the Labour Courts/ Tribunals must factor in the nature of employment, whether public or private.Section 11A empowers Labour Courts/ Tribunals to lessen the punishment of 'discharge or dismissal from service' for employee's misconduct and direct reinstatement on such terms...
The Gujarat High Court has held that while exercising its powers under Section 11A of the Industrial Disputes Act, 1947, the Labour Courts/ Tribunals must factor in the nature of employment, whether public or private.
Section 11A empowers Labour Courts/ Tribunals to lessen the punishment of 'discharge or dismissal from service' for employee's misconduct and direct reinstatement on such terms and conditions, if any, as it thinks fit.
Justice AY Kogje observed that while granting relief under the provision, the Labour Court must be cognizant that in case the employee in question was in public service, the consequence of his misconduct may have wider ramifications.
Reliance was placed on Ahmedabad Municipal Transport Service v. Vinubhai J.Ghanchi, 2012 (2) LLJ 811, where it held dismissal of conductor on account of absenteeism to be the punishment which is justified and that exercise of jurisdiction under Section 11A by the Labour Court in setting aside order of dismissal was set aside.
"In public service, absenteeism will have a greater impact. The respondent was working as a bus conductor with the petitioner and his absence would have resulted in disruption of essential services like public transport which would result into unnecessary harassment to the citizens. Persons occupying such posts deprive the more needy and more deserving and may be more serviceable persons of the post that they are occupying and they need to be dealt with firmly to ensure better administration," it was held therein.
In the instant case, the Court was dealing with a writ petition filed under Article 226 of the Constitution by the Ahmedabad Municipal Transport Service against the order of labour Court, setting aside the order of dismissal from service passed by the petitioner-corporation and in exercise of powers under Section 11A, reducing the punishment from dismissal to withholding of two increments with permanent effect.
The Respondent No. 1, an employee, at the Petitioner-Corporation was dismissed from service basis long absenteeism.
The primary contention of the Petitioner was that the employee was issued show cause notices at different stages of inquiry, was granted the opportunity to produce documents in accordance with principles of natural justice. The charges were duly proved. Hence, the Labour Court under Section 11A committed an error in ignoring the quantum of his misconduct and disregarding the nature of essential services that he was rendering in public duty. Therefore, his termination was justified.
The Court observed that due departmental inquiries were undertaken wherein the Respondent defended himself and thereafter, he was terminated. Further opining that under Section 11A, the Labour Court is required to consider various instances of past misconduct of the individual, his age, the ability to earn, the Justice Kogje noted that there were six instances of misconduct of the employee with one of a serious nature. There were issues of absenteeism and theft, as well which the Labour Court had disregarded.
The Bench also ventured into determining the nature of services dispensed by the employee. For instance, in Maganbhai L. Chauhan vs. Divisional Controller, GSRTC [1999 (1) GLH 527], it was opined that where employee is connected with public services and has been consistently engaged in misconduct, hence he could not be exonerated.
In the instant case, the Bench noted these precedents and recognised that in view of consistent absenteeism of the employee in public service, the Labour Court had erred in exercising its jurisdiction under Section 11A of the Act by setting aside the order of dismissal.
The objective of Section 11A is to ensure that the employment of the applicant is not jeopardised or his livelihood is not affected. The facts and circumstances of this case differed. Hence, the Bench set aside the order of the Labour Court and allowed the Petition.
Case Title: Ahmedabad Municipal Transport Service vs Bodar Augustin Bhurjibhai
Citation: 2022 LiveLaw (Guj) 50
Case No.: C/SCA/13381/2017
