1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 1221 of 2009 Shantaram Dhondu Kapse ..Petitioner vs. The Chairman & Managing Director ..Respondent Mr.Arun Nimbalkar for petitioner Mr.S.K.Talsania,Sr.Counsel with M.s K.Anchan i/b M.V.Kini and Co. for respondent CORAM: S.J.KATHAWALLA J. 31 st August, 2009 P.C. 1 By this writ petition the petitioner is impugning the Award dated 3 rd December, 2008 passed by the Central Government Industrial Tribunal No. II disposing of the reference dated 18 th December, 2007 sent to the Tribunal by the Under Secretary of Central Government in exercise of powers conferred under clause (d) of sub-section (1) and sub-section (2A) of Section10 of the Industrial Disputes Act, 1947 to decide: 2 whether the action of the management of Air India Ltd., Mumbai in dismissing Shri Shantaram Dhonu Kapse, Senior Loader from the service with effect from 11th March, 1998 is justified and legal? If not, to what relief is the concerned workman entitled? 2 The petitioner was charged for illegal and unauthorised absenteeism for 29 days in June,1997. Admittedly, the petitioner on earlier occasions was punished for the same offence and this was the 8 th instance of illegal absenteeism as is set out in paragraph 20 of the Award which reads thus: 20...... In para 14 of written statement Management has made out the case that the concerned workman remained absent for 53 days in 1983 where punishment of Censor was given. Then he remained absent for 45 days in 1984 on which enquiry was conducted and punishment of reduction of basic pay by one stage was served on the concerned workman. 3 Then he was charge sheeted on 25th April, 1988 regarding his 28 days absenteeism, for which he was warned. Again he was charge sheeted on 17.10.1989 for remaining absent without leave for 48 days where punishment of reduction in basic pay for 2 years was awarded to the concerned workman. Then he was charge sheeted on 8.1.1991 for remaining habitually absent, where punishment of reduction in rank from Head Loader to Loader was served. Then by charge sheet dated 11.9.1996 for remaining absent for 46 days of absenteeism, written warning was given to the concerned workman. Then in January, 1997 charge of habitually remaining absent without permission for 79 days was leveled on him on which he was reverted to the post of Senior Loader for a period of two years. These convictions are not disputed by the concerned workman. These are 7 instances in which he was convicted but again he remained 4 absent for 29 days in June, 1997..... 3 Since the petitioner had complained that the enquiry was not fair and proper and the finding perverse the petitioner was given an opportunity by the Tribunal to prove that he had sufficient cause to remain absent and that he had conveyed to his superiors that he would remain absent and the cause thereof. As stated in the Award the petitioner took various stands for remaining absent. He alleged that his son was in hospital, his wife was missing, his brother had expired and his father had a fall. However, he failed to produce any evidence. Since the petitioner had failed to produce any evidence also before the Enquiry Officer, the Tribunal correctly held that it cannot be said that the enquiry was not fair or the order was perverse. 4 Since the learned Advocate for the petitioner insisted that all the reasons 5 given by the petitioner were true and evidence in respect thereof was placed before the Tribunal, this Court called upon the petitioner through his Advocate to give the dates and documents showing that his son who is working as canteen staff of respondent and insists that he is possessed by his uncle s spirit and is taking spiritual counseling for the same, was in fact admitted in Bhatia hospital, if yes, for how many days and whether the petitioners presence was through out required if he was only under observation. However, no particulars were submitted even to this Court. The petitioner also failed to provide to this Court even the dates when the brother of the petitioner expired or when the wife of the petitioner went missing or when his father had a fall. This Court was informed that no police complaint was given though the wife of the petitioner was missing. 6 5 From the aforesaid facts it is established that the petitioner is in the habit of remaining absent from work illegally and unauthorisedly. The Tribunal is correct in upolding the action of the Management in dismissing the petitioner and the Award passed by the Tribunal need not be interfered with under Article 226. The writ petition is,therefore, dismissed. However, there will be no order as to costs. (S.J.KATHAWALLA J.)