1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.3971 OF 2009. 1. DIVISIONAL CONTROLLER, M.S.R.T.C., BHANDARA. .. PETITIONER/S. VERSUS 1. SEVAKRAM BHAIYYALAL BAREJU AGED 60 YRS. R/O.C/O. KHEMRAJ BHAIYYALAL BAREJU HANSAPURI KUMBHARPURA KHADAN NEAR HOUSE OF LALWANI, NAGPUR.. .. RESPONDENT/S. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri V.G.Wankhede, Advocate for Petitioner. Shri D.C.R.Mishra, Advocate for Respondent. CORAM : R.C.CHAVAN, J. DATED : OCTOBER 01, 2009. 1. This petition by employer is directed against an order passed by the learned Member, Industrial Court, Bhandara, rejecting petitioner’s revision and allowing respondent-workman’s revision against an order passed by the learned Judge, Labour Court, Gondia on a complaint of the respondent. The respondent remained absent for eight days in September, 1994 and 19 days in October, 1994. By chargesheet dated 01.12.1994 he was chargesheeted for this absence without prior permission. This chargesheet does not refer to any previous instances of absence or does not refer to 2 habitual absenteeism. The workman was subjected to an enquiry and was dismissed from service w.e.f. 14.09.1995. He filed complaint before the learned Judge, Labour Court, Gondia, who held that the enquiry was not fair and proper. This finding was challenged before the Industrial Court, who confirmed the said finding, therefore, the department was permitted to tender evidence before the Judge, Labour Court. The learned Judge, Labour Court, by his judgment dated 21.08.2008, held that the employer did not prove misconduct before the Court and then went on to observe that the punishment of dismissal was disproportionate and harsh, and while ordering reinstatement directed the employer to pay 50% back wages. 2. Both, the employer and employee challenged this order by preferring revisions before the learned Member, Industrial Court, who, by his impugned judgment, set aside the order of the learned Judge, Labour Court and ordered that the employee was entitled to 100% back wages as the charge was not proved. 3. I have heard Advocate Shri Wankhede for the petitioner, who painstakingly took me through the evidence tendered and contended that the absence of the respondent had also been recorded in the service book. He submitted that the respondent had given three reasons for his absence, namely that he was suffering from piles, typhoid and enteritis fever which shows that the reasons given were false. Therefore, according to the learned 3 counsel, the Courts below were not justified in holding that the charge of remaining absent for 8 days in September and 19 days in October, 1994 was not proved. He submitted that previous service record about absenteeism of the workman had also been tendered before the learned Labour Court and Industrial Court, which should have been considered. 4. The learned counsel for the respondent-workman submitted that previous record was irrelevant since there was no charge of habitual absenteeism. That record could have been taken into consideration if the charge was proved for the purpose of considering appropriate punishment. Since the learned Judge, Labour Court held that the charge was not proved, there was no question of looking into the previous record. He further submitted that the department had examined three witnesses before the Labour Court and pointed out that Personnel Officer of the Department Rajendra Ramteke had himself admitted that there was no charge of habitual absenteeism in the chargesheet and that there was an application on record that the workman was suffering from typhoid. Therefore, according to him, the learned Member, Industrial Court rightly held that the charge was not at all proved and therefore, there was no question of inflicting any punishment, even denial of 50 % back wages, on the workman. 5. The learned counsel for the petitioner submitted that the employees of the department may not know anything and therefore, merely because Shri 4 Ramteke stated something before the Labour Court, it does not mean that the charge was baseless. He pointed out that Shri Ramteke had referred to the report submitted by the Traffic Inspector, which was at Article-A with the chargesheet, which report showed that the employee was absent. Now, if that report was to be the foundation of the guilt of the employee the department should have examined the author of the report i.e. the concerned Traffic Inspector, rather than examining the Personnel Officer. Second witness examined, Depot Manager, was candid in admitting that he was not aware of the fact as to who had prepared report dated 24.04.1994 and that he did not know the facts when the chargesheet was issued, because he was not Depot Manager at that time and he has only checked the default register and not any other document. Third witness examined by the department, Shankar Bawane, who was clerk with the petitioner, has merely referred the punishment mentioned in the register against the name of the respondent. Now, this punishment would have become relevant only if charge was proved. 6. At the cost of repetition, it has to be pointed out that Personnel Officer Shri Ramteke not only stated that the workman had given an application for leave but also could not assign any reason why the reporter had submitted a report about the respondent when there was leave application. 7. In view of this, it cannot be said that the findings recorded by the Courts below that the charge was 5 not proved are perverse or warrant any interference by this Court. Rather, they are the only findings which could have been recorded. Since guilt of the respondent was not proved, he was obviously entitled to full back wages. Therefore, the order passed by the learned Member, Industrial Court cannot be faulted. The petition is dismissed. JUDGE RR.