1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 560/2008 (Divisional Controller, M.S.R.T.C. VS. Sayed Kalim s/o Sayed Abbas) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 17 th APRIL, 2008. Heard Shri Wankhede for the petitioner, and Shri Mishra for the respondent. By this petition, the petitioner challenges the order passed by the Labour Court, Gondia, in Complaint ULP No. 33/1998 on 23/4/2007, directing the petitioner to pay 50% of back wages to the respondent, as also that of the Industrial Court in Revision (ULPA) Nos. 70/2007 and 75/2007, dated 30/8/2007, upholding the order passed by the Labour Court. The respondent had filed a complaint before the Labour Court under the provisions of Section 28 read with Item No. 1 of Schedule IV of MRTU & PULP Act, alleging unfair labour practice on the part of the petitioner by dismissing him from service vide order dated 31/7/1998. The respondent was terminated from service in view of 2 the fact that he remained absent from duty for a certain days in November and December, 1997 and also in January 1998, without submitting an application for grant of leave. Though the respondent had pleaded that he had submitted the application for grant of leave, the Labour Court disbelieved the evidence of the complainant and held that the respondent had miserably failed to prove that he had submitted the leave application to the petitioner. Though the Labour Court came to a conclusion that the respondent had proceeded on leave without submitting an application for the same, the Labour Court held that the punishment of dismissal was shockingly disproportionate to the alleged misconduct. The Court held that the petitioner should not have been dismissed in view of the discipline and appeal procedure of the Corporation. The Labour Court considered the ratio laid down in the reported decision to hold that the action of the petitioner in dismissing the respondent was illegal, improper, bad in law and amounted to unfair labour practice. Since the respondent had already attained the age of superannuation in the month of July, 2006, the Labour Court, Gondia, held that the respondent was only entitled to 50% back wages. The order passed by the Labour Court on 24/3/2007 was challenged by both the petitioner 3 and the respondent before the Industrial Court. According to the petitioner, the Labour Court was not justified in granting 50% back wages and according to the respondent, the Labour Court ought to have granted full back wages to the respondent, as the Court had held that the order of dismissal was clearly disproportionate to the alleged misconduct. The Industrial Court, Bhandara, however, by the order dated 30th August, 2007, dismissed both the revision applications. I have minutely perused the judgments of the Labour as well as Industrial Courts. The Labour Court had rightly held that the punishment of dismissal was clearly disproportionate to the alleged act of misconduct. Since the respondent had attained the age of superannuation, the Labour Court was further justified in granting 50% back wages to the respondent to meet the ends of justice. No fault can be found with the orders passed by the Labour as well as the Industrial Courts as both the Courts have refused to grant the entire back wages to the respondent and rightly so and merely granted 50% of back wages to the respondent in view of the fact that the respondent had proved the unfair labour practice committed by the petitioner. The judgment reported in (2006) 5 Supreme Court Cases 137 and relied upon by the counsel for the 4 petitioner, cannot come to the rescue of the petitioner in this case as the employee in the reported case had remained absent for about 2½ years and the leave record showed that he had repeatedly remained absent, unauthorizedly. The case in hand is distinguishable on facts. There is no error whatsoever in the judgments passed by both the Courts, much less a jurisdictional error so as to exercise extraordinary jurisdiction under Article 227 of the Constitution of India. Hence, the writ petition is dismissed with no order as to costs. JUDGE RMP