H. K. RATHOD, J. ( 1 ) LEARNED Advocate Mr. K. V. Gadhiya appearing on behalf of the petitioner and Learned Advocate Mr. Jagdish Brahmbhatt appearing on behalf of the respondent-workman. In the present petition, notice has been issued returnable on 8th March, 2000. Today, Rule has been issued in the present petition and Learned Advocate Mr. Jagdish Brahmbhatt is waiving service of rule and with the consent of both the Learned Advocates the rule has been heard today. In the present petition, the award passed by the Industrial Tribunal in Complaint No. 84 of 1997 in Reference (I. T.) No. 237 of 1992 dated 10th June, 1999 is challenged by the petitioners wherein, the Industrial Tribunal has allowed complaint by setting aside, dismissal order with a direction to reinstate the respondent in service with full back-wages of interim period with all consequential benefits with the cost of 500/ -. The affidavit-in-reply has been filed by the respondent-workman. ( 2 ) THE above facts of the present petition is that respondent-workman was working as a Driver Base No. 18323 at Radhanpur Depot in Palanpur Division. The allegations against the respondent that respondent was remained absence with effect from 21st July, 1994 to 22nd November, 1994. On the basis of the said allegations the charge sheet was served to the respondent and after the departmental inquiry the respondent-workman was dismissed from service on 22nd November, 1994. Against the said dismissal the first and second departmental appeals were filed by the respondent but, same were dismissed by the petitioner. The second appeal was dismissed on 7th January, 1997 and thereafter, the respondent-workman had filed complaint under Section 33 (A) of the Industrial Disputes Act challenging the dismissal order before the Industrial Tribunal, Ahmedabad. The defence of the respondent was that from 1971 he was working as a driver and he was all of sudden fallen sick because of continuous working without enjoying weekly off on 21st July, 1994. On 21st July, 1994 there was a weekly off of the respondent due to sickness the respondent was admitted in Kalol Municipal Hospital after preliminary medical examination on 1st August, 1994. The respondent was suffering from T. B. Therefore, there was advised by the doctor to take complete rest. On 21st July, 1994 there was a weekly off of the respondent due to sickness the respondent was admitted in Kalol Municipal Hospital after preliminary medical examination on 1st August, 1994. The respondent was suffering from T. B. Therefore, there was advised by the doctor to take complete rest. The respondent has sent leave report with medical certificate of Kalol Municipal Hospital with the signature of Medical Officer with fellow employee to the concerned Depot Manager up to the period 31st August, 1994. Thereafter, the health of the respondent was not good and recovered therefore, again 7th September, 1994 alongwith the leave report with medical certificate sent to the Depot Manager, Radhanpur. However, the Depot Manager has not refused the leave of respondent No. 1, issued charge sheet on 1st August, 1994. Knowing fully well that respondent was sick and admitted in Hospital and thereafter, in absence of the respondent the departmental inquiry was initiated and ultimately on 22nd November, 1994, respondent was dismissed from service. The respondent was also informed to the Depot Manager that on 28th July, 1994 the wife of one relative was expired and therefore, he was not able to come up to 7 days and thereafter, leave report with medical certificate were sent from time to time covering the period from August, 1994 to 31st October, 1994. The Industrial Tribunal has considered the rival contention of both the parties. The Industrial Tribunal has considered the important fact that respondent-workman was remained absence with effect from 21st July, 1994. The Tribunal has also considered that while rejecting the leave application of the respondent, the Competent Authority has not given any reason when leave report was submitted by the respondent alongwith medical certificate whether medical certificate is right or wrong or genuine or not that has not been examined by the Competent Authority. On the contrary by two letters dated 26th July, 1994 and 29th July, 1994, the Competent Authority has insisted upon the respondent to resume the duty inspite of the fact that respondent was sick. The leave report was not sanctioned in arbitrary manner. Therefore, the Industrial Tribunal come to the conclusion that when the respondent has submitted leave report of signature with medical certificate then question of remaining absence without prior permission does not arises and same cannot be considered to a misconduct under the rules. The leave report was not sanctioned in arbitrary manner. Therefore, the Industrial Tribunal come to the conclusion that when the respondent has submitted leave report of signature with medical certificate then question of remaining absence without prior permission does not arises and same cannot be considered to a misconduct under the rules. The Tribunal has also considered the finding of Inquiry Officer that said finding is malafied, pre-decided and arbitrary. It is also fact on record that said leave report though not sanctioned but, no decision to that fact has been communicated to the respondent. Therefore, after considering entire evidence on record scrutinise the finding given by the Competent Authority. The Industrial Tribunal come to the conclusion that punishment of dismissal is required to be set aside. Therefore, the Industrial Tribunal has set aside the dismissal order and directed to the petitioner to reinstate the respondent in service with continuity and with all consequential benefits. ( 3 ) THE Learned Advocate Mr. Ghadhiya has submitted that the Tribunal has committed an error in coming to such conclusion and not considering the past record of the respondent wherein, on four occasion for the period 30th May, 1993 to 21st June, 1993, 2nd January, 1994 to 30th January, 1994, 18th November, 1993 to 12th December, 1993 and 4th April, 1994 to 18th May, 1994 the respondent remained absence without prior permission, that fact has been considered by the Inquiry Officer in the finding given by the Inquiry Officer. As against the Learned Advocate Mr. Brahmbhatt submitted that when in present case the respondent has submitted the leave report for respective period alongwith medical certificate and leave report is sanctioned or not. No decision has been communicated to the respondent and there was no doubt raised against the genuineness of medical certificate of Government Hospital. Therefore, when present misconduct is not proved and petitioner acted in arbitrary manner with a malafied intention and pre-decided mind dismissed the respondent then in such circumstances the past record is totally irrelevant and same can not be now relied against the respondent. ( 4 ) I have heard the both the Learned Advocates, the facts in the present case is not much disputed between the parties. ( 4 ) I have heard the both the Learned Advocates, the facts in the present case is not much disputed between the parties. The facts remain that in present case respondent who was working since 1971 remained absence for about three and half months on the ground of sickness and same genuine reason which supported by medical certificate which definitely a punishment of dismissal is harsh, unjustified and arbitrary. In view of the decision of Apex Court reported in 1999 S. C. Cases Labour and Service page-666 in case of Saiyed Jahir Husein v. Union of India wherein, it is observed that a punishment of dismissal from service on account of unauthorized absence just for seven days. Dismissal considered to be too harsh a penalty requiring substitution by another appropriate penalty. There is another decision of the Apex Court in case of Union of India and others v. Giriraj Sharma reported in A. I. R. 1994 S. C. 215 wherein, the Apex Court has observed paragraph No. 2 and 3 are as under :"2. Mr. Jain the learned counsel for the appellant Union of India contended that the interpretation placed on Section 11 (1) of the Central Reserve Police Force Act, 1949 (hereinafter called the Act) is not correct and it is on account of this erroneous understanding of the provision that the High Court quashed the order of dismissal. In support of his contention he invited our attention to a decision of the Rajasthan High Court reported in AIR 1965 Raj 140 . He also relied on certain other decisions but it is sufficient to state that according to him the learned Judges of the High Court had committed an error in interpreting the said sub-section. In our opinion it is not necessary for us to construe sub-section (1) of Section 11 of the Act in the backdrop of the facts of the present case. Assuming Mr. Jain is right, we are of the opinion that so far as the present case is concerned the allegation is in regard to the incumbent having over-stayed the period of leave by 12 days. The incumbent while admitting the fact that he had over-stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. The incumbent while admitting the fact that he had over-stayed the period of leave had explained the circumstances in which it was inevitable for him to continue on leave as he was forced to do so on account of unexpected circumstances. We are of the opinion that the punishment of dismissal for over-staying the period of 12 days in the said circumstances which have not been controvered in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order, but the circumstances force him to do so. In that view of the matter the learned counsel for the respondent has fairly conceded that it was open to the authorities to visit him with a minor penalty. If they so desired, but a major penalty of dismissal from service was not called for. We agree with this submission. 3. In the result we see no merit in this appeal but we would modify the order of the High Court by stating that while we affirm the High Courts order quashing the order of dismissal and directing reinstatement in service with monetary benefits, it will be open to the department, if it so desires, to visit the respondent petitioner with a minor punishment. The appeal will stand disposed of accordingly with no order as to costs. If the reinstatement has not taken place thus far the department should reinstate him latest within two weeks from today. " ( 5 ) IN view of the above observation made by the Apex Court and in present case on hand the Tribunal has examined in detail all aspects and come to the conclusion that respondent was remained absence because of sickness, leave reports were submitted alongwith medical certificate and during period of sickness exparte inquiry initiated against the respondent in pre-decided manner. The inquiry has been completed and punishment of dismissal has been imposed in arbitrary manner. Therefore, the finding recorded by the Tribunal which does not required under Article 226 and 227 of the Constitution of India. However, one fact remain that in past about four similar misconduct has been committed by the respondent to remain absent without prior permission of the Competent Authority that cannot be ignored but, considering this fact accordingly to my opinion, if some punishment is imposed to the respondent which will meet end of justice. However, one fact remain that in past about four similar misconduct has been committed by the respondent to remain absent without prior permission of the Competent Authority that cannot be ignored but, considering this fact accordingly to my opinion, if some punishment is imposed to the respondent which will meet end of justice. Therefore, according to my opinion, if two increments are stopped with permanent effect of respondent, considering his past record that will be the sufficient punishment to the respondent-workman for having four similar misconduct in past. Therefore, the award passed by the Industrial Tribunal, Ahmedabad required to be modify is under :"the order of the dismissal dated 22nd November, 1994 is required to be set aside and same is hereby quashed and set aside and it is directed to the petitioner to reinstate the respondent-workman with continuity of service and with full back-wages and with all consequential benefits alongwith punishment of stoppage of two increments with permanent effect. Accordingly the present petition is partly allowed. Rule made absolute to that extent. " ( 6 ) IN the present petition, the award passed by the Industrial Tribunal is remain intact except the modification is respect to punishment of stoppage of two increments with permanent effect. Therefore, it is directed to the petitioner-Corporation to reinstate the respondent-workman in service with continuity within a period of one month from the date of receiving certified copy of this order and it is further directed to the petitioner-Corporation to pay full back-wages with all consequential benefits to the respondent-workman within a period of eight weeks from the date of receiving the certificate of this order. ( 7 ) IN view of the above observation and direction, the present petition is partly allowed. Rule is made absolute to that extent. .