-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.5523 OF 1997 Maharashtra State Road Transport Corporation, having its office at Vahatuk Bhavan, Bellasis Road, Bombay Central, Bombay--400 008. : Petitioner V/s. 1. Shri Balbhim Bapuli Torane, C/o. Pramod Tailors, Seven Bungalows, Near Canara Bank, Opp.225 Bus Stop, Andheri West, Mumbai--400 061. 2. Presiding Officer, Industrial Court, Bombay. : Respondents ... Mr.G.S.Hegde for the petitioner. Mr.Shankar S. Deshmukh i/b.Mr.Sanjeev J. Rairkar for respondent no.1. ... CORAM : S.A. BOBDE, J. DATE : MARCH 31, 2009. ORAL JUDGEMENT 1. The petitioner has challenged the order of the Labour -: 2 :- Court, Mumbai, dated 18.6.1996 allowing the respondent no.1’s complaint and directing reinstatement with full back wages and continuity of service as also the judgement and order dated 12.8.1997 of the Industrial Court rejecting the Revision Application filed by the petitioner. 2. I have heard Mr.Hegde, the learned counsel for the petitioner. The learned counsel for the respondent no.1 stated that he has no instructions to appear in the matter. 3. Mr.Hegde, the learned counsel for the petitioner, states that during the pendency of this Writ Petition, the petitioner has reinstated the respondent no.1 who has attained the age of superannuation thereafter. 4. The petitioner served a charge-sheet on the respondent no.1 in which he was charged with absence for the period from 1.10.1986 to 30.11.1987. During this period, the respondent no.1 was charged with absence for 176 days, apart from having been granted leave of 228 days. He was alleged to have remained present only for 17 days. Accordingly, the respondent no.1 was charged for insubordination, indiscipline, negligence and irregular attendance. -: 3 :- 5. The respondent no.1 admitted that he was present only for 17 days during the aforesaid period of 14 months. It is a clear admission that the respondent no.1 was not present on the other days. However, the learned Labour Court has found that respondent no.1’s absence justified, inter alia, on the ground that his ticket-box was taken in possession by the Corporation when he was on leave and it was not returned to him, as a result, he could not work and for that he submitted applications from time to time. 6. Mr.Hegde, the learned counsel for the petitioner, submitted that the justification for the respondent no.1’s action found by the Labour Court is not warranted. It appears that the Labour Court has been impressed by the respondent no.1’s argument that the petitioner did not allow the respondent no.1 to join duty and, therefore, he had to submit leave applications by registered post A/D. and, therefore, the absence cannot be treated as unauthorised. The Labour Court does not appear to have properly applied its mind to this situation. In the first place, the trial Court has not specifically pointed out the period for which leave was sanctioned by the petitioner and yet, he is shown to have been on unauthorised leave. The trial Court missed the fact that the respondent no.1 was charged having been absent for 176 -: 4 :- days during the aforesaid period from 1.10.1986 to 30.11.1987. The charge itself stated that during this period, he was absent for 176 days and was on leave for 228 days. Therefore, if the Labour Court wanted to give the aforesaid findings, it was bound to point out where there was an overlap. In any case, the Labour Court seems to have lost sight of the fact that admittedly for a period of about 14 months, the respondent no.1 was present on duty only for 17 days. Mr.Hegde submits that there is not a single instance where the respondent no.1 has written a letter stating that he presented himself on a particular date and he was not allowed to join duty. In fact, the learned counsel points out that the respondent no.1’s contention that he was not allowed to join is in apparent contradiction with his leave applications on medical ground. Further, it appears that the Labour Court was concerned with the punishment on the ground that though show cause notice against dismissal was given, which the respondent no.1 was supposed to have replied within 72 hours, the petitioner terminated the services before that period. The Labour Court has not taken the trouble to discuss the various events and point out how dismissal was effected before 72 hours. It was surely not permissible for the Labour Court to simply state that the termination was effected prior to the period of 72 hours given in the show cause notice. The Labour Court has -: 5 :- concluded by the following observations in paragraph 13:- "13. In the present matter we have to see whether workman was really prevented from joining duties and if we go through documentary evidence in this matter produced by the workman that will clearly establish that the workman was diligent about his rights and as the Corporation was not allotting him work, he was submitting written applications. He has orally deposed to this effect." It is not possible to see how the Labour Court has held that the workman was diligent about his rights as the Corporation was not allotting him work. It is obvious that the Labour Court has lost sight of the fact that the respondent no.1 was present only for a period of 17 days during 14 months. The Labour Court has pointed out that there are certain periods when he was granted leave. It is not pointed out how the respondent no.1 has been charged with misconduct for those very days. Apparently, in the charge-sheet itself, it is stated that the respondent no.1 was absent for 176 days and he enjoyed leave of 228 days during the period of 1.10.1986 to 30.11.1987. It was not permissible for the Labour Court -: 6 :- to hold in effect that there was no habitual absence because the respondent no.1 was not absent without intimation. As regards the ticket-box, the submission of Mr.Hegde appears to be correct that the petitioner is bound to take back possession of the ticket-box if a Conductor was absent. 7. In the circumstances, the impugned order of the Labour Court is liable to be set aside on the ground that it has resulted in perversity and miscarriage of justice for failing to point out how the respondent no.1 was justifiably absent when it was admitted that he was present only for 17 days for the period of 14 months. In this view of the matter, the impugned orders are set aside. The petitioner is, however, directed not to make any recovery from the respondent no.1 of any sum for the period during which he has worked. 8. Rule is made absolute in the aforesaid terms. No order as to costs. S.A. BOBDE, J.