1 wp-5365-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 5365 OF 2009 Shri.Prakash Ganpat Gavane ..Petitioner Vs. The General Manager, BEST Undertaking ..Respondent .... Ms.Sangita Lidkar Adv. i/b Mrs.Neeta Karnik Adv. for Petitioner Mr. S.K.Talsania, Senior Counsel with Ms. Kavita Anchan i/b M/s.M.V.Kini and Co. for Respondent. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : SEPTEMBER 18, 2009 P.C.: 1. Rule. By consent of the parties, Rule is made returnable forthwith and is taken up for final hearing. 2. Heard the learned counsel for the Petitioner and the learned Senior Counsel for the Respondent-BEST. 3. In this petition, the Petitioner has impugned the order dated 30th June, 2007 passed by the Labour Court Mumbai in Application (BIR) No. 87 of 2004 and the order of the Industrial Court, Mumbai dated 28.1.2009. By order dated 30th June, 2007, the application preferred by the 2 wp-5365-09 Petitioner for reinstatement with full back wages and continuity of service, came to be rejected. Being aggrieved thereby, the Petitioner approached the Industrial Court, Mumbai by filing Appeal (IC) No. 59 of 2007. The said appeal came to be dismissed by order dated 28th January, 2009. 4. Brief facts of this case are as under: The Petitioner was serving as Conductor in Respondent-BEST since 20th January, 1992. From December, 2002 to November, 2003, he remained absent without leave for a period of 29 days as detailed in charge-sheet given to him. Enquiry came to be conducted and ultimately, considering the past records, the Trying Officer awarded the punishment of dismissal of the Petitioner from service. The Petitioner preferred two administrative appeals which were also dismissed. Thereafter, he approached the Labour Court which dismissed his application. Thereafter, he approached the Industrial Court. 5. It may be stated here that before the Industrial Court, the learned counsel for the Petitioner did not challenge the legality or propriety of the departmental enquiry and advanced his arguments only on the question of proportionality of the punishment to the proved misconduct. Even otherwise, as far as the enquiry is concerned, it is pertinent to note that the Petitioner in his cross-examination has admitted that full opportunity to defend him was given. 3 wp-5365-09 6. As far as absence of Petitioner from service is concerned, the factum of absence is admitted by the Petitioner, however, his case before the Trying Officer was that since his father had died in 1995, he was required to look after his family responsibility. However, before the Labour Court, the reason furnished for his absence was that he and his mother were sick. Before the Trying Officer or before the Labour Court, the Petitioner did not produce any material to show that he himself was ill or his mother was ill on account of which, he was required to remain absent unauthorizedly for a period of 29 days. 7. The past record of the Petitioner shows that he had been punished for unauthorized absence on four occasions i.e. on 11.4.1997, he was punished for stoppage of one increment for one year, on 1.4.1998, he was punished for stoppage of two increments for one year, on 10.3.1999, he was punished for stoppage of one increment permanency and on 14.2.2000, he was suspended for 90 days. 8. The Petitioner was working as Conductor in the BEST Undertaking which transports lakhs of commuters in a day. It is seen that the Petitioner has habitually remained absent without leave. The facts of the present case are similar to the facts in the decision of this Court dated 9th February, 2005 in W.P. No.4590 of 1996 in the matter of Shri.Dnyaneshwar P. Gharat Vs. The General Manager, BEST Undertaking. In the said case also, the Petitioner was a bus 4 wp-5365-09 conductor of the BEST Undertaking. He was dismissed from service on the ground of unauthorized absence for 28 days on background of his past record which showed he was punished on four earlier occasions for unauthorized absence. In the said case, this Court held that “dismissal was justified in view of the fact that it was a chronic case of absenteeism. ” In the present case, the Petitioner was absent for 29 days from December, 2002 to November, 2003. He has also been punished on four previous occasions on account of unauthorized absence. In my view, the absence of a workman for 29 days with a past record of punishment for four times for unauthorized absence, would be sufficient to justify the order of dismissal of the Petitioner from service. Looking to the facts of the present case, it cannot be said that the punishment of dismissal is disproportionate. Hence, no interference is called for. Writ Petition is dismissed. Rule discharged. [ SMT.V.K.TAHILRAMANI,J.]