1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2150 OF 2000 Padmakar Vishnu Mhatre ... Petitioner V/s. The General Manager, The BEST Undertaking, Mumbai & Ors. ... Respondents Smt. Neeta Karnik for the Petitioner. Mr. Apurv Harsh i/b. M.V. Kini & Co. for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATE : 28 TH FEBRUARY, 2011. ORAL JUDGEMENT : 1. The judgements challenged in the present Petition have been delivered by the Labour Court, Mumbai in Application (BIR) No.78 of 1997 on 31st October, 1998 and by the Industrial Court, Mumbai in Appeal (IC) No.93 of 1998 on 5th July, 1999. Both, the application before the Labour Court as well as the Appeal before the Industrial Court have been dismissed. 2. The petitioner was employed as a “Bus Conductor” from 4th March, 1982 with the respondent-Undertaking. A charge sheet was issued against the petitioner on 18th November, 1996 alleging that he was habitually absent which was a misconduct under Certified Standing Order 20(f). A domestic enquiry was 2 conducted against the petitioner where the charges levelled against him were proved. He was dismissed from service on 25th February, 1997 on account of his habitual absence for about 117 days. The petitioner preferred departmental appeals which were rejected on 30th June, 1997. He, therefore, filed Application (BIR) No.78 of 1997 contending that his services had been illegally terminated. It was the petitioner’s case that his absence from duty for 117 days from October, 1995 to September, 1996 was because of the illness of his wife and son. He also contended that he fell ill thereafter and was not in a position to attend work. 3. The respondent-Undertaking has filed its written statement in which it was contended, inter alia, that the petitioner had been found guilty in a domestic enquiry conducted against him; that there was no leave to his credit; that the petitioner had been punished on several occasions earlier for similar acts of misconduct. It was pointed out that the petitioner had joined service in March, 1982 and was absorbed as a permanent employee from 1st July, 1983. Thereafter, he had been punished time and again because of his absence from duty. This absence was found to be habitual by the respondent-Undertaking and, therefore, the petitioner was dismissed. 4. It appears that the parties have not led any evidence before the Labour Court. The respondent-Undertaking relied on the enquiry proceedings and the report of the enquiry officer. In fact, joint pursis were submitted by the parties indicating that they did not wish to lead any oral evidence in the matter. 3 5. The Labour Court has held that the enquiry conducted against the petitioner was fair and proper and that the findings were not perverse. It concluded that the punishment of dismissal was commensurate with the acts of misconduct indulged in by the petitioner. It noted the several acts of misconduct committed by the petitioner while considering his past service record. The Labour Court observed that in spite of opportunities having been given to the petitioner to improve his conduct, he did not care to do so. The Labour Court, therefore, refused to grant any relief to the petitioner and held that it was necessary to maintain discipline in the respondent-Undertaking. 6. Being aggrieved by the order, the petitioner preferred Appeal (IC) No.93 of 1998 before the Industrial Court. The Industrial Court in the said Appeal confirmed the view taken by the Labour Court. The Industrial Court has also considered the fact that the petitioner’s past service record was dismal and, therefore, it refused to grant any relief to the petitioner. 7. I have considered the judgements impugned in the present Petition and I am of the view that there is no need to interfere with them under Article 227 of the Constitution of India. In the present case, admittedly, the petitioner was absent from duty for 117 days during the period from October, 1995 to September, 1996. He was not granted leave though on some occasions the petitioner had applied for leave during this period. In fact, the petitioner did not had any leave to his credit. 4 8. In the domestic enquiry conducted against the petitioner he had been found guilty of the acts of misconduct alleged against him, namely habitual absence from duty from October, 1995 to September, 1996. In my view, when the Enquiry Officer, the Appellate Authorities, the Labour Court and the Industrial Court have all taken the view that the petitioner had committed the misconduct of habitual absence, there is no need for me to take a different view under Article 227 of the Constitution of India. 9. Moreover, the past service record of the petitioner does not reflect that the petitioner wished to continue in service. He had been punished for similar acts of misconduct on earlier occasions too. His past service record was as follows : (i). On five occasions he was punished for similar acts of misconduct under Standing Order 20(f). (ii). He was reduced in the grade by one step for nine months. (iii). On 15th November, 1990, he was reduced again in the grade by one step for a period of one year. (iv). Thereafter, on 15th January, 1991, he was again reduced in the grade by two steps for two years. (v). He was later reduced by one step in the grade per month and suspended thereafter for three months. 5 10. In all the above cases the act of misconduct complained against the petitioner was of absence. If an employee is incorrigible and does not wish to improve his record with the employer, although he had been given several opportunities to do so, it would be inappropriate to grant any relief to such a workman. 11. In the case of President, BEST Workers’ Union & Anr. vs. General Manager & ors., reported in 2011 I C.L.R. 464, I had considered a similar case of another employee of the Corporation. On the basis of the evidence and material on record in that case, I had found that there is no need to interfere with the findings of the Labour Court. The workman in that case had remained absent from duty time and again and, therefore, he had been charge sheeted under Certified Standing Order 20(f). It had been found that he had been punished only after the Labour Court had considered the past service record which was similar to that of the petitioner in the present case. 12. In my view, the petitioner does not deserve any indulgence in the present case. It may have been true that his wife was unwell and/or that his son was also ill. However, it appears that there is no material on record to indicate this. Besides, the petitioner had no leave to his credit. 6 13. After considering the orders impugned in the present Petition, I am of the view that there is no need to interfere with them under Article 227 of the Constitution of India. 14. The Writ Petition is dismissed. 15. Rule discharged.