: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.472 OF 2009 Municipal Corporation of Greater . Bombay, through the General Manager . Bombay Electric Supply and . Transport Undertaking ....Petitioner V/s. Gautam Shriram More & Anr. ....Respondents Mr.Sudhir Talsania, Senior Counsel with Ms.Kavita Anchan i/by i/by M.V. Kini & Co. for the Petitioner. Mr.N.D. Nagle for the Respondents. CORAM : S.J. VAZIFDAR, J. DATED : 30TH MARCH, 2009. P.C. : 1. Rule. 2. The Petitioner has challenged an order dated 23.6.2008 passed by the Industrial Court dismissing the Petitioner’s Appeal filed under Section 84 of the Bombay Industrial Relationship Act, 1946. The Appeal was against the order dated 1.4.2005 passed by the Labour Court directing the Respondent to be reinstated with continuity of service but without any back wages. 3. The order of the Industrial Court probably as it is a confirming order does not deal with the matter : 2 : in any detail. It is therefore, necessary to examine the order of the Labour Court as well. 4. The Respondent was charged inter-alia for habitual absence without leave/absence without leave for more than 15 consecutive days under S.O. to 20(L). The Labour Officer (Transport), who was the Trying Officer found the employee guilty of being habitually absent despite ample opportunity to show improvement in his attendance by awarding a lesser punishment in the past. He observed that there was no improvement in the employee’s attendance despite the Petitioner having given him ample opportunity in the past by awarding lesser punishment. 5. As noted in the order of the Trying Officer and as submitted by Mr.Talsania, habitual absenteeism of the employee would adversely affect any organization and especially an organization such as the Petitioner, considering the nature of the services provided by it. The Trying Officer therefore ordered the dismissal of the employee from the service of the Petitioner from the close of work on 15.12.1999. 6. The Labour Court held that the enquiry was fair and proper and that the findings were not perverse. However, the Labour Court held that the : 3 : order of dismissal was illegal and improper. 7. One of the main aspects which weighed with the Labour Court was that the employee had applied for sick leaved which was rejected by the leave sanction authority of the Petitioner which was improper, illegal and against the Petitioner’s leave, regulations I and II. He further held that the leave sanctioning authority had no discretion to reject sick leave. He also held that this fact had not been considered by the Trying Officer at the time of considering the punishment. 8. There is nothing on record which justifies this finding. The learned counsel appearing on behalf of the Respondent was unable to indicate any regulation which made it compulsory or mandatory for leave sanctioning authority to grant sick leave irrespective of the facts of the case. He was unable to indicate any regulation which supported this finding either. 9. The Labour Court further held that the Trying Officer had not mentioned anything in the charge-sheet dated 22.7.1999 about the past record of the employee, that the Petitioner’s witness had not produced the past record or deposed about the same in his evidence : 4 : and that despite the same the Trying Officer had mentioned about the past record in his findings and based the order of punishment thereon. 10. The written statement filed by the Petitioner sets out in detail the employee’s record from August, 1988 till July, 1997. The employee had been punished on eight occasions for absenteeism. The leave record is also produced. There does not appear to have been any dispute regarding the record and what is stated therein. 11. However, with a view not to leave any room for doubt, I would instead of admitting this Writ Petition, afford the parties an opportunity of reagitating the issue of the past record before the Labour Court. 12. In the circumstances, the Writ Petition is disposed of by the following order :- i). The orders of the Labour Court and the Industrial Court are set-aside and the matter is remanded for a fresh hearing before the Labour Court. The Respondent shall be entitled to take inspection of the records pertaining to his employment with the : 5 : Petitioner and to file any additional affidavit, if he so desires. The Petitioner shall also be at liberty to reply to the same.