1 wp10173.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10173 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. V.N. Upadhye along with Mr. A.R. Zarkar, Advocates for the petitioner. Mr. P.V. Barde, Advocate for respondent. 1. Heard Advocate Mr. Upadhye for petitioner and Advocate Mr. Barde for respondent. 2. The petitioner bank is assailing the award dated 30.04.2008 delivered by IInd Labour Court, Ahmednagar in Reference (IDA) No. 26/2004 and published vide notification in November, 2009. 3. Advocate Mr. Upadhye for petitioner has raised two contentions, first one is, the memo accompanying the charge sheet itself proved habitual absenteeism for a period from October, 1983 to October, 1994. He further states that in any case, past service record clearly shows the habit of remaining absent. Learned Counsel has pointed out that enquiry conducted is fair and valid and in 2 wp10173.10 these circumstances, when such long absence is demonstrated, the Labour Court could not have interfered with discretion in the matter of punishment exercised by the petitioner-Management. According to him, the choice of punishment is the domain of petitioner-Management and Court ought not to have encroached upon it. He relied upon several judgments in support of his contentions. 4. Advocate Mr. Barde for respondent has contended that the charge no.1 is not established at all and the respondent-employee has already superannuated. He points out that respondent-employee was also not given the back wages by the Labour Court. 5. The facts show that the respondent is Ex-Army Personnel and he was issued charge sheet on 27.02.1996 and has been dismissed on 08.11.1996. The charge sheet vide charge no. 1 mentions that he is in habit of remaining absent without leave application, leave balance and without prior sanction. He was once awarded the punishment of stoppage of increment for six months vide final order dated 27.05.1995. It is then alleged that despite this he was not punctual in duties and in attendance. The third charge is for remaining absent without intimation for a period of exceeding 30 days i.e. for a period w.e.f. 28.11.1995 to 25.01.1996. 3 wp10173.10 6. Along with this charge sheet, the final order of punishment is enclosed and that final order of punishment shows that a show-cause notice was issued to him on 27.01.1995. He did not reply to it and ultimately his increments were stopped for a period of six months. Memo also accompanying the charge sheet shows his absence from 28.10.1993 till October, 1994. It is alleged that he has committed mis conduct and therefore, it was proposed to award him punishment of stoppage of increments for a period of six months for the above misconduct. Memo is therefore obviously prior to above mentioned final order and for entire absence as reflected therein, the punishment was already imposed. 7. Labour Court has considered all these facts and found that in so far as the habitual absenteeism is concerned, it was not made out as there were no details. The Labour Court has found that the length of absence on earlier occasion or details thereof were not given and Memo itself could not have been relied upon as proof of habitual absenteeism. It has then considered the charge no.3 about absence from 28.11.1995 to 25.01.1996 and noted that later on the certificate of Civil Surgeon was produced and he also applied for taking him on duty. 8. These facts are not demonstrated to be as erroneous and perverse. For alleged habitual absenteeism, the employee was already punished and 4 wp10173.10 hence that could not have been a ground for punishment again. It could have been at the most looked into as his past service record. In so far as charge no.3 is concerned, the Labour Court has given valid reasons for not accepting the findings recorded thereunder by the Enquiry Officer. 9. As already noted above, finding reached by Labour Court show that the respondent was aged about 62 years and he had attained his age of superannuation in 2005, the Labour Court has not given him reinstatement on that count but found him entitled to retirement benefits accordingly and for that purpose granted continuity without any back wages. Thus from the date of termination i.e. 08.11.1996 till superannuation in 2005, he has been denied back wages. Consideration by Labour Court therefore can not be said to be erroneous or perverse. 10. The decision and adjudication, therefore, based upon the facts and hence it will not be necessary to refer to various judgments relied upon by Mr. Upadhye. The Petition is therefore rejected. No costs. (B.P. DHARMADHIKARI) JUDGE. 04.02.2011 gas/wp10173.10