WP/5326/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5326 OF 1999 Maharashtra State Road Transport Corporation, Mumbai ... Petitioner V/s. Mahadev B. Dahivalkar ... Respondent Mr. G.A. Karmalkar i/b. Mr. G.S. Hegde for the Petitioner. None for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATE : 22 ND DECEMBER, 2010. ORAL JUDGEMENT : 1. The petitioner-Corporation has approached this Court against the Award dated 31st December, 1998 passed by the Labour Court, Thane in Reference (IDA) No.123 of 1989. The Labour Court has set aside the dismissal order dated 17th December, 1986. However, reinstatement was not practicable because the respondent had superannuated during the pendency of the Reference. The Labour Court, therefore, directed that he be paid 50% of the back-wages due to him from 17th December, 1986 till 26th November, 1992. 2. The respondent was engaged as a “Conductor” by the petitioner- Corporation. During his services of 23 years, he was dismissed for misappropriation of certain amounts on three occasions i.e. in 1976, 1979 and 1985. On each of these occasions, the Appellate Authority set aside the order of dismissal and directed that a lesser punishment should be imposed on him. WP/5326/1999 2 Accordingly, the respondent’s service with the petitioner-Corporation continued unabated. During this period, he was punished on 22 occasions for having committed various acts of misconduct. The punishments imposed were minor in nature. Out of these 22 occasions, he was punished 7 times for absenteeism. It appears that the respondent was incorrigible and even after being reinstated with the intervention of the Appellate Authority in 1985, he was absent again for 14 days in November, 1985, 31 days in December, 1985, 14 days in January, 1986 and from 14th January, 1986 till he was dismissed. 3. A charge sheet was issued to the respondent on 26th January, 1986 for his absence for various periods in November, 1985, December, 1985 and January, 1986. An enquiry was held against him. The Enquiry Officer found him guilty of the acts of misconduct alleged against him. The Disciplinary Authority accordingly accepted the findings of the Enquiry Officer and dismissed the respondent from service w.e.f. 17th December, 1986. 4. Being aggrieved by the order of dismissal issued against him, the respondent raised an industrial dispute which was referred for adjudication before the Labour Court, Thane. The parties filed their respective pleadings. The respondent contended that he was absent on the dates mentioned in the charge sheet as he was suffering from Asthama and his aged mother was ill. He contended that he had sent applications for leave along with Medical Certificates to the Depot Manager, Karjat. He also contended that the Enquiry Officer did not WP/5326/1999 3 conduct the enquiry in a fair and proper manner and instead he was victimized for having remained absent on some days. 5. The petitioner-Corporation in its written statement placed on record the past service record of the respondent. It further contended that the enquiry was conducted in accordance with the principles of natural justice and fair play and in consonance with the Discipline and Appeal Procedure governing the service conditions of the respondent. He was charged under Clauses 10, 11, 27 and 38 of Schedule I of the Discipline and Appeal Procedure. 6. By Award Part I dated 31st December, 1997, the Labour Court found that the enquiry conducted against the respondent was fair and proper. It was of the view that the enquiry could not be vitiated as it was conducted in consonance with the Discipline and Procedure and the principles of natural justice. 7. The Labour Court, by Award Part II which is impugned in the present Petition, found that the findings of the Enquiry Officer were correct and could not be termed as perverse. However, it was of the view that the punishment of dismissal was too harsh and disproportionate for the misconduct committed by the workman. The Labour Court observed that the Medical Certificates had been produced by the workman indicating that he was absent because of his own ailments of Asthama and Backache and due to his mother’s illness. The Medical Certificates produced by the workman were accepted as genuine by the Labour WP/5326/1999 4 Court. Thereafter the Labour Court held that the misconduct was not intentional and, therefore, could not be termed as gross misconduct. The Court also noticed the past service record of the workman. In these circumstances, it held that dismissal was not the proper punishment as the misconduct was not so serious as to warrant the punishment of dismissal. The respondent was held entitled to reinstatement with continuity of service but because he had reached the age of superannuation during the proceedings, it was not practicable to grant this relief. There was no evidence regarding gainful employment of the workman but because the past service record of the workman was not good, the Labour Court was of the view that a lesser punishment of depriving the workman of 50% of his back-wages would suffice. Accordingly the respondent was awarded half the back- wages payable to him from 17th December, 1986 to 26th November, 1992. 8. In my opinion, the Labour Court has completely erred while passing the impugned award. Although it may be possible to accept the reasoning of the Labour Court that the misconduct of remaining absent for the days mentioned in the charge sheet was not such which would warrant a punishment of dismissal, in the present case, the workman did not deserve a lesser punishment. Admittedly, the workman did not have an unblemished service record. In fact, it was positively bad. I have already mentioned the nature of the respondent’s record of service with the petitioner-Corporation. To say the least, the petitioner-Corporation was sufficiently lenient with the respondent. It had indulged him several times and WP/5326/1999 5 had continued him in service despite his three acts of misappropriation and his absence for prolonged periods on seven occasions, besides several other acts of misconduct for which he was punished with the minor punishments. It appears that the respondent was recalcitrant. Even after the charge sheet was issued to him, he chose to remain absent till he was dismissed from service. Admittedly, he participated in the enquiry but did not bother to attend duties. Two letters were sent to him by the petitioner-Corporation calling upon him to resume duties while the enquiry was in progress. However, the respondent failed to do so. 9. In these circumstances, in my opinion, the Labour Court has erred in directing that any amount should be paid to the respondent. In the peculiar facts and circumstances of this case, the respondent-workman would not be entitled to any dues and the order of dismissal must be upheld. 10. The impugned Award dated 31st December, 1998 passed by the Labour Court, Thane in Reference (IDA) No.123 of 1989 is set aside. The Reference (IDA) No.123 of 1989 is rejected. 11. The Writ Petition is allowed. 12. Rule made absolute. No orders as to costs. 13. The amount which has been deposited by the petitioner-Corporation shall be disbursed to the petitioner-Corporation forthwith together with the accrued interest, if any.