Bombay High Court
Ashok Vithalrao Solunke vs Divisional Controller on 10 May, 2016
Bench: R.V. Ghuge
WP/55/2000 & ANR
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 55 OF 2000
Divisional Controller,
Maharashtra State Road
Transport Corporation,
Osmanabad. ..Petitioner
Versus
Ashok Vitthalrao Salunke,
Age 47 years, Occ. Nil,
R/o In front of Motor Services,
Khaja Nagar, Osmanabad. ig ..Respondent
...
Advocate for Petitioner : Shri A.B.Dhongade
Advocate for Respondent : Shri Sarang P.Joshi
...
WITH
WRIT PETITION NO. 3461 OF 2005
Ashok Vitthalrao Salunke,
Age 50 years, Occ. Nil,
R/o In front of Motor Services,
Khaja Nagar, Osmanabad. ..Petitioner
Versus
Divisional Controller,
Maharashtra State Road
Transport Corporation,
Osmanabad. ..Respondent
...
Advocate for Petitioner : Shri Sarang P. Joshi
Advocate for Respondent : Shri A.B.Dhongade
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: May 10, 2016
...
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ORAL JUDGMENT:-
1. The first petition is filed by the MSRT Corporation against the
employee, namely, Ashok Vithalrao Solunke. The second petition is
filed by the said employee against the MSRT Corporation.
2. In both these petitions, the same judgment and order dated
31.8.1999, delivered by the Industrial Court in Revision (ULP) No.15
of 1998 has been challenged.
3. The first petition was admitted on 20.1.2000 and the impugned
judgment was stayed by way of interim relief.
4. I have heard Shri Dhongade, learned Advocate for the
Corporation and Shri Joshi, learned Advocate for the employee at
length.
5. The MSRTC has challenged the order of reinstatement with
continuity of service as is granted by the Industrial Court. The
employee has challenged the refusal of the Industrial Court in
granting backwages.
6. The issue raised in this petition is only as to whether the
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unauthorized absenteeism of the employee for about 150 days in
between November, 1987 and August, 1988 could be termed as being
a minor mis-conduct and covered by item 1(g) of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 ("the said Act "). Item 1(g) reads as
under:-
" 1. To discharge or dismiss employees:-
(g) for misconduct of a minor or technical character,
without having any regard to the nature of the
particular misconduct or the past record of service of
the employee, so as to amount to a shockingly
disproportionate punishment."
7. The employee had joined as a Bus-Conductor in 1971. He has
been dismissed from service after conducting a domestic enquiry on
10.12.1988. His last misconduct which has occasioned his dismissal is
of remaining unauthorizedly absent for 150 days as noted above. The
Industrial Court has concluded that the past service record of the
employee is blemished and he had the habit of remaining absent
without obtaining prior permission from time to time. It is stated that
on several occasions, the employee had been punished for his acts of
unauthorized absenteeism prior to his dismissal for the misconduct of
absenteeism for 150 days.
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8. In the light of the above, I do not find that unauthorized
absenteeism for 150 days in a span of about ten months could be
termed as being a misconduct of a minor or technical character.
9. It is trite law that the employer has to decide the quantum of
punishment by considering the seriousness and the gravity of the
misconduct as well as in the light of the past service record of the
employee (Read : Managing Director, ECIL, Hyderabad etc. V/s
Karunakar etc. [ AIR 1994 SC 1074 = (1993) 4 SCC 727],). It is equally
well settled that if the past service record is blemished, it would
operate as an aggravating factor and a clean past service record
would operate as a mitigating factor. Item 1(g) of Schedule IV
mandates an employer to consider the past service record before
deciding the quantum of punishment.
10. In the instant case, the past service of the employee is
blemished and operates as an aggravating factor.
11. As such, I find that the interference by the Industrial Court in
the impugned judgment amounts to showing mis-placed sympathy to
employee. It is crystallized law that merely because the punishment
appears to be disproportionate, would not be a ground for causing
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interference in the punishment. The said punishment, after
considering the seriousness and gravity of the misconduct proved and
the past service record, must appear to be shockingly
disproportionate.
12. In the instant case, the gravity of THE misconduct proved and
the blemished past service record would clearly indicate that the
Industrial Court has committed a grave error in showing misplaced
sympathy to the employee, by setting aside the order of punishment
and granting reinstatement in service with continuity without back
wages.
13. In the light of the above, the petition filed by the Corporation
succeeds. The impugned judgment of the Industrial Court dated
11.8.1999 is quashed and set aside. Revision (ULP) No.15 of 1998
filed by the employee stands dismissed. Rule is, therefore, made
absolute in the first petition.
14. Consequentially, the second petition, which is filed by the
employee fails and is dismissed. Rule is discharged.
15. Needless to state, since the employee has not been held guilty
of a misconduct involving moral turpitude, he would be entitled to
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retiral / pensionary benefits, strictly in accordance with the Rules,
Regulations and the policy of the Corporation. If such retiral benefits
inclusive of gratuity have not been paid to the employee, the same
shall be paid within a period of ten weeks from today.
( RAVINDRA V. GHUGE, J. )
...
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