Bombay High Court
Subhash Ramlal Patil vs Divisional Controller Msrtc ... on 3 March, 2016
Bench: R.V. Ghuge
WP. 3665/04
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3665 OF 2004
Subhash S/o. Ramlal Patil,
Age : 49 years, Occ : Nil,
R/o Shivaji Nagar, Pachora,
Tq. Pachora, Dist. Jalgaon.
ig ...Petitioner...
Versus
The Divisional Controller,
Maharashtra State Road
Transport Corporation,
Jalgaon Division, Jalgaon.
...Respondent...
.....
Shri P.B. Salunke, Advocate for petitioner.
Shri Manoj Shinde, Advocate h/f Shri M.K. Goyanka,
Advocate for respondent.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 03.03.2016
ORAL JUDGMENT :
1] This petition was admitted by this Court vide
order dated 24.6.2005.
WP. 3665/04
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2] The petitioner is aggrieved by the judgment and
order dated 6.3.2004 delivered by the Industrial Court by
which Revision (ULP) No.44/2001 filed by the respondent -
Corporation was allowed and the judgment of the Labour
Court was quashed and set aside.
3] The petitioner submits that he joined the
respondent as a Driver in 1981. His past record is clean
and unblemished. He was charged with having remained
unauthorizedly absent for 67 days. A domestic enquiry
was conducted against him and upon being held guilty of
the charges, a second show cause notice dated 3.1.2000
was issued to him. Finally he was dismissed from
service.
4] The petitioner preferred Complaint (ULP)
No.24/2000 before the Labour Court at Jalgaon. By its
part one order, the Labour Court concluded that the
enquiry was conducted in a fair and proper manner. The
enquiry was thus upheld. However, while delivering the
final judgment, the Labour Court concluded that the
findings of the Enquiry Officer are partly perverse and
the complaint was partly allowed. The petitioner was
granted reinstatement with continuity of service without
WP. 3665/04
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back wages.
5] The petitioner submits that the respondent filed
the revision petition before the Industrial Court. By
the impugned judgment, the revision petition was allowed
and the judgment of the Labour Court was quashed and set
aside.
6] The petitioner submits that after the Labour
Court allowed his complaint, he was reinstated in
employment. After the Industrial Court allowed the
revision petition of the respondent - Corporation, the
petitioner was dismissed from service on 8.9.2004. The
date of retirement of the petitioner is 31.5.2012. He
has been paid his provident fund dues. Retiral benefits
and gratuity is still not paid.
7] The petitioner contends that his land was
acquired by the Government and he was frequently required
to attend to certain proceedings in relation to such
acquisition. Consequentially, he was required to remain
absent. It is further submitted that the health of the
petitioner was not sound and as such he was required to
remain absent owning to ill-health. On various
occasions, he has filed applications seeking leave
WP. 3665/04
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supported with medical certificates, which have not been
accepted by the respondent - management.
8] It is further submitted that though the
respondent contends that the petitioner's past service
record is blemished, the default card was not established
before the Labour Court. It is further submitted that
the unauthorized absence for 67 days is a minor mis-
conduct and the punishment of dismissal from service is
shockingly disproportionate to the gravity and
seriousness of the mis-conduct. It is, therefore, prayed
that this petition be allowed.
9] Shri Goyanka, learned Advocate for the
respondent, has defended the impugned judgment of the
Industrial Court. He submits that the Labour Court did
not consider the past service record of the petitioner.
As on 8.12.2000, the petitioner had committed 35 mis-
conducts. He was reinstated on account of the judgment
of the Labour Court and he continued till 8.9.2004.
Until then, his mis-conducts had grown to 44. This was
considered by the Industrial Court and hence the revision
filed by the respondent was allowed. He, therefore,
prays for the dismissal of this petition.
WP. 3665/04
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10] I have considered the submissions of the learned
Advocates.
11] It needs to be mentioned that the past service
record of an employee is neither required to be mentioned
in the charge-sheet nor are the mis-conducts contained in
the past record required to be proved before the Labour
Court. It is trite law that the past service record is a
factor that has to be considered by an employer while
quantifying punishment to be awarded to an employee. A
clean and unblemished past service record over a
considerable service period is considered as a mitigating
factor and a blemished past service record is considered
as an aggravating factor.
12] It is also trite law that until the punishment
awarded to an employee appears to be shockingly
disproportionate, the Courts are not to interfere in the
punishment merely because it may appear to be
disproportionate.
13] The Labour Court has concluded that the findings
of the Enquiry Officer are partly perverse while
delivering its final judgment. This issue should have
been dealt with by the Labour Court earlier so as to
WP. 3665/04
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constitute its part one judgment. Nevertheless, the
respondent - Corporation has not raised any grievance
about this aspect.
14] The Labour Court has interfered with the
punishment by concluding that 67 days of unauthorized
absentism is a minor mis-conduct. I am surprised by the
conclusion of the Labour Court in paragraph no.6 of its
judgment, which reads thus:-
"Therefore, considering all these aspects and
considering the admitted position of law that
the absentism is not serious and severe, I am of
the considered opinion that the punishment of
dismissal imposed upon the complainant is
shockingly disproportionate looking to the
gravity of mis-conduct."
15] It is undisputed that the Labour Court has not
even referred to the past service record of the
petitioner. It is also undisputed that the Industrial
Court has considered the 35 mis-conducts committed by the
petitioner as is demonstrated by the default card. The
Industrial Court, therefore, rightly concluded that the
past service record of the petitioner aggravates the
gravity and the seriousness of the mis-conduct proved
WP. 3665/04
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against the petitioner.
16] In the light of the above, I do not find that
the Industrial Court has committed any error in allowing
the revision petition, in quashing the judgment of the
Labour Court dated 8.12.2000 and in dismissing the
Complaint (ULP) No.24/2000.
17] As such, this petition is devoid of merit and
is, therefore, dismissed. No order as to costs.
(RAVINDRA V. GHUGE, J.)
ndk/c33162.doc
