- (1.) Heard the learned advocate Mr.Nagarkar on behalf of the petitioner and learned advocate Mr.R.V.Desai appearing on behalf of the respondent.
(2.) In the present petition, petitioner has challenged the award passed by Labour Court, Ahmedabad in Reference No.1722/84 dated 30th September, 1992, wherein Labour Court has set aside the dismissal order and granted the reinstatement with contitunity of service with 25% backwages of interim period. Initially this Court has issued Rule on 5th February 1993 not granting the stay against the reinstatement but the stay has been granted against the backwages of interim period with continuation that if ultimately petitioner loose in this matter then they should have to pay the amount of 25% backwages with 12% interest of interim period.
(3.) Learned Advocate Mr.Nagarkar, vehemently submitted that Labour Court has committed gross error in granting the reinstatement with 25% backwages. He submitted that constant and continues absence atleast about 12 occasions from June 1982 to May 1983 which goes to 196 days remaining absent without prior permission of the authority. This being a serious misconduct having cumulative effect and, therefore, punishment of dismissal is just and proper and Labour Court should not have to be interfered while exercising the power under Section 11 (A) of the I.D.Act, 1947. He further submitted that workmen has not given any explanation that why he remained absent for such a long period of 196 days. He also submitted that he remained absent even in the departmental inquiry. He also submitted that Labour Court in one occasion came to the conclusion that it is a gross misconduct and next moment came to the conclusion that punishment of dismissal is harsh, therefore, in such a contradictory finding Labour Court has committed basic error that requires interference of this Court. He submitted that workmen should have to be careful while working in the corporate body, so if he wants to go for leave then he should ask in prior point of time with the authority for a permission then he should go on leave. Otherwise the work of the public body will unnecessary suffer. He also submitted that there is no challenge to the inquiry by the workmen and, therefore, the Labour Court has committed gross error in set asiding the punishment while exercising the power under Section 11(A) of the I.D.Act, 1947. He read over before this Court para 10,11,12 and 13 and emphasized that normally in India this foreign concept is not accepted to keep the body and soul together by the workmen. Unemployment is known to everybody and in case of dismissal this is the only result and, therefore, no sympathy can be shown by the Court for such a gross misconduct case. He also emphasized that punishment of dismissal is not such a shock and disproportionate which affect the judicial conscious of the Court. He relied upon one decision in support of his submission of the Apex Court reported in AIR 2003 Supreme Court page 1800. He submitted that in identical case on remaining absent by one Police Officer the Apex Court has come to the conclusion that such absence continues having cumulative effect the punishment of dismissal is proper. Therefore, he submitted that in this case also the punishment imposed by the disciplinary authority is legal and valid and interfered by the Labour Court while committing the error and, therefore, interference by this Court is necessary.;