1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1054 OF 2003 FROM ORDER IN WRIT PETITION NO.245 OF 2000 N.R.C.Employees Union. ...Appellant vs. N.R.C.Limited. ...Respondent --- Ms.Gayatri Singh, AGP with Ms.A.Kaiwar, for appellant. Mr.P.K.Rele Sr.Advocate with Mr.Piyush Shah, for Respondent. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 4th February,2009. P.C.:- 1. By this appeal, the appellant challenges the 2 order dated 27.6.2003 passed by the learned Single Judge of this Court in writ petition no.245 of 2000. The writ petition was filed by the appellant challenging the order passed by the Labour Court dismissing its complaint and the order of the Revisional Court dismissing its revision. The petitioner was in the employment of the respondent as driver. A domestic inquiry was held against him. The misconduct alleged against the petitioner was that he remained absent from duty from 1.10.1993 to 6.12.1993 without applying for leave. The misconduct was admitted. The reason given for remaining absent without giving any leave application during that period is that at native place his brother was hospitalised. Admittedly no evidence has been produced to show that the petitioner has brother or that he was in hospital. In the domestic inquiry, the charge was held to have been proved, punishment of dismissal was imposed. That punishment was challenged before the Labour Court by filing complaint of unfair labour practice. That complaint was dismissed. A revision application was filed before the Industrial Court, that revision 3 application was dismissed. Against that writ petition was filed. The learned Single Judge has considered all aspects of the matter in detail in his order which is impugned in this appeal. 2. The learned Counsel appearing for petitioner submitted, relying on the judgment of the Division Bench of this Court in the case “Borosil Glass Works Ltd. Vs. M.G.Chitale & Richard M.D'Souza, in Special Civil application no.874 of 197, decided on 9.7.1973”, that it was the duty of the disciplinary authority to consider the past record of the petitioner, which according to her was good, and because that record was not considered the dismissal order has to be set aside. This question has been considered by the learned Single Judge. The learned Single Judge has held that the petitioner has not raised the ground in the complaint that because of non consideration of previous record of the appellant, the dismissal order is rendered illegal. The learned Single Judge has given elaborate reasons for recording that finding. 4 3. Then it was submitted, relying on the judgment of the Supreme Court in the case “Colour- Chem Ltd. Vs. A.L.Alaspurkar and others, (1998)3 Supreme Court Cases 192”, that consideration of past record of the appellant which was good was mandatory duty cast on the disciplinary authority and non consideration of that record and imposition of extreme punishment of dismissal amounts to victimization and therefore, the order of dismissal should be set aside. In our opinion, in the absence of ground being raised in the complaint that the past record of the appellant which, according to the appellant, was good, was not considered by the disciplinary authority, an inquiry into that aspect was not necessary to be made by the Court, it being essentially a mixed question of fact and law. We do not find any fault with the Courts below in not considering this aspect of the matter. In our opinion, in any case the misconduct alleged against the petitioner was of extremely serious nature. Admittedly, he was a driver working on the car of the Managing Director, and without any intimation and without any leave application, he disappeared from 5 duty right from 1.10.1993 till 6.12.1993. He has not produced any evidence to show that he had good reason to remain absent without intimation, without submitting leave application for such a long time. It is an act of rank indiscipline. In our opinion, therefore, the employer is fully justified in imposing punishment of dismissal. 4. The appellant had challenged the concurrent findings recorded by the Labour Court and the Industrial Court under the extraordinary jurisdiction of this Court. The learned Single Judge of this Court has declined to exercise his extraordinary jurisdiction which essentially is discretionary. We find that the discretion has rightly been exercised by the learned Single Judge. Therefore, there is no scope for this Court to interfere with it. The appeal, therefore, fails and is dismissed. No order as to costs. (D.K.DESHMUKH, J.) 6 (A.A.SAYED,J.) ---