( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1144 OF 1993 Mohd. Rasheed s/o Mohd. Inayat Ullah, R/o Majnu Hill, Rashidpura, Hudco Road, Aurangabad. PETITIONER VERSUS 1. The State of Maharashtra 2. The Divisional Controller, Maharashtra State Road Transport Corporation, Aurangabad Division, Aurangabad. 3. The Depot Manager (A), S.T. Ambad Deport, Ambad. RESPONDENTS …. Smt. A.N. Ansari, advocate for the petitioner. Mr. D.R. Korade, AGP for the respondent No. 1/State. Smt. R.D. Reddy, advocate for the respondent No. 2. …. [CORAM : V.R. KINGAONKAR, J.] [DATE : 2nd August, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner is challenging judgement and order, rendered by learned Presiding Officer, Labour Court, Aurangabad in Reference (IDA) No. 69/1984. 2. It is not necessary to elaborately set out the rival ( 2 ) contentions. There is no dispute about the fact that the petitioner was working as a driver on the establishment of the respondent No. 2. There is also no dispute about the fact that the petitioner did not attend the duty for about three (3) months between December, 1982 to March, 1983. He appeared after three (3) months to join the duty. He was, however, not allowed to join duty for the reason that he had not produced medical certificate duly counter-signed by the Medical Officer. It appears that he did not produce fitness certificate as well as the certificate about the prolonged illness, which was required to be attested and verified by the Civil Surgeon as per the Rules of the respondent No.2. A charge-sheet was, therefore, served on him for remaining absent without prior sanction of the leave during the relevant period. It appears that he had been absent from the duty, during the relevant period, is an admitted fact and the same is matter of record. The petitioner had filed written statement alleging that he was absent due to medical reasons. He submitted that he was admitted in the Government Hospital due to illness. It also appears that he had submitted certain medical papers lateron after issuance of show-cause notice as to why he be not awarded major penalty of dismissal. The petitioner was eventually terminated from the service. He ( 3 ) challenged the termination order before the Labour Court on the ground that he was not given due opportunity and that his explanation regarding illness and medical reasons was not properly appreciated. The learned Presiding Officer of the Labour Court, however, rejected the Reference (IDA) No. 69/1984. 3. Heard learned counsel for the parties and learned AGP. 4. The only question involved in the petition is as to whether the termination of the petitioner is the penalty which is disproportionate to the alleged misconduct and, therefore, the impugned judgement and order requires interference. 5. Mrs. A.N. Ansari would submit that the petitioner has now crossed the age of superannuation. She would further submit that the petitioner is not now likely to get reinstatement and that he is ready to give up the claim for backwages. She submits that the termination of the petitioner is stigmatic and, therefore, he may be allowed to opt for voluntary retirement and may be paid due pension as admissible under the Rules. The learned counsel for the respondent No. 2 ( 4 ) submits that the long standing absence of the petitioner is a serious misconduct and, therefore, the penalty imposed on him need not be reviewed. She alternatively submits that if this Court finds it that the penalty is too harsh and disproportionate, then the representation of the petitioner for grant of permission to seek voluntary retirement will be sympathetically considered. 6. In the present case, the main difficulty is that the learned Presiding Officer of the Labour Court has not assigned valid reasons in support of the conclusion that the order of dismissal is proportionate penalty to the alleged misconduct. The prolonged absence of an employee, in a given case, may be termed as serious conduct, subject to the condition that he failed to give any valid explanation and was found in a habit of remaining absent. In other words, if an employee would habitually remain absent and is incorrigible, then the dismissal may be justified. In the present case, there was no charge of his habitual absenteeism, nor any evidence was tendered to show that the petitioner frequently remained away from the duty and, therefore, caused hindrance in the work of the respondent No.2. Indeed, the question to be examined was whether the dismissal from the service could be regarded as a ( 5 ) proportionate penalty commensurate with the gravity of misconduct alleged against the petitioner. The learned Presiding Officer of the Labour Court observed : “The IInd party did not care to contact the Ist party, employer personally or through anybody else for putting his case and requesting the management not to proceed with the enquiry. Hence the action of the Ist party, employer of issuing the show cause notice of dismissal and then finally dismissing him from service shall have to be justified. The punishment of dismissal from service cannot be held to be disproportionate as tried to be contended by the learned counsel of the IInd party. I, therefore, find that the dismissal of the IInd party from service is perfectly legal and valid. I, therefore, answer the issue No. 3 in the affirmative.” Perusal of the above observations appearing in the impugned judgement, clearly shows that the question regarding proportionality of the penalty has not been considered by the learned Presiding Officer of the Labour Court on touchstone of legal principles applicable in such a case. The petitioner did not take care to contact the employer during the relevant period or during the period of enquiry is his conduct which may show apathy, yet, it cannot be the ground in support of ( 6 ) the conclusion that the severe penalty is justified. The learned Presiding Officer did not give any finding to the effect that the petitioner was frequently absent from the duty and was not at all interested in rendering the service as a driver. In this view of the matter, the proposal of the learned counsel for the petitioner that the petitioner may be allowed to be availed benefit of voluntary retirement, instead of dismissal, is quite justified and proper. It may be mentioned here that learned counsel Smt. Reddy sought reliance on certain observations in “Chairman cum Managing Director, Coal India Limited & another vs. Mukul Kumar Choudhuri and others” 2009 (15) SCC 620 and “Regional Manager, Bank of Baroda v. Anita Nandrajog” 2009 AIR SCW 5627. Both the authorities are on different footings and the question of proportionality of penalty in the present case stands on altogether different set of facts. 7. Taking overall view of the matter, I am of the opinion that the penalty of dismissal is quite disproportionate to the nature of misconduct proved against the petitioner. Hence, the petition is partly allowed. The impugned judgements and orders are set aside. The petitioner is permitted to submit representation to the respondent No. 2 ( 7 ) and the competent authority may grant him leave to seek voluntary retirement on the assumption that the notice for such voluntary retirement is issued by him prior to the period as required under the statutory Rules of the respondent No. 2 and he will be eligible to the retirement pension from the date of superannuation on assumption that he has been granted voluntary retirement. He will not be entitled to backwages or any other incidental relief/s which claims have been deemed as abandoned. The representation may be filed by the petitioner within period of two (2) weeks and the same shall be duly considered and decided within period of six (6) weeks thereafter and the monetary benefits be made available to the petitioner without any delay. Rule is made absolute accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp1144-93 ( 8 )