JUDGMENT 1. - This writ petition has been filed by the employer against three respondents, one being Union of India, other being Labour Court, and the third being the affected party, the workman. 2. The workman appeared on 19-9-2003 as caveator. Thereafter the matter went on being adjourned for one reason or the other. However, on 5-1-2004, the counsels present, submitted that they would like to finally argue the matter at this stage itself, and since respondent Nos. 1 and 2 were only formal party, and the affected parties respondent was duly represented, I have heard the learned counsel for final disposal, on 14-1-2004. 3. The petitioner has filed the present writ petition, against the award of the Industrial Tribunal-cum-Labour Court, Udaipur, dated 20-5-2003 (Annexure 4), whereby the learned Labour Court set aside the impugned order of dismissal, and instead, imposed punishment of forfeiture of 50% back wages only, and ordered reinstatement. 4. The facts of the case are, that the workman was dismissed by the employer, after a departmental enquiry, and such dismissal was sought to be assailed, by way of raising industrial dispute, whereupon the Central Government made the reference to the learned Labour Court, referring the question, as to whether action of the Management, in removing services of the workman is legal and justified, if not, to what relief the workman is entitled ? Thereupon the reference was registered, and notices were sent to the parties, in response whereto, the workman submitted his claim, the employer submitted his reply. However, no affidavits were filed by either of the parties. 5. During the course of hearing, the legality and propriety of departmental enquiry were not challenged, and the only challenge made was to the quantum of punishment. 6. However, no affidavits were filed by either of the parties. 5. During the course of hearing, the legality and propriety of departmental enquiry were not challenged, and the only challenge made was to the quantum of punishment. 6. The learned Labour Court noticed that the workman's case is, that he was appointed under sportsmen quota and despite this there was no scheme for providing facilities to the sportsmen, the workman had to work from 8 A.M. to 4.30 P.M., and in the extra time he had to undertake practice, the facilities, as were made available to the workmen, in other industrial establishments, were not made available to the workman, and that the workman participated in various District Level and State Level sports activities for the employer, and got the employer won, and thus elevated the reputation of the employer, and that in this process, the workman suffered injuries many a time, and after 12 years of sports career, his health started deteriorating, and, therefore, occasionally he remained absent from duty. Then thereafter learned Labour Court observed that these averments of the workman have not been controverted by the employer. And thus the learned Labour Court held that the workman had to undertake sports practice during the extra time, the workman got the employer won, in various sports events, and that on account of having sustained injuries, during sports competition, and practice, his efficiency reduced, and after 12 years of sports career his body started keeping ache. With this finding by referring to some judgments, learned Labour Court found that the punishment awarded is excessive, and the award, as aforesaid, was passed. 7. Assailing the impugned award, it is contended by the learned counsel for the petitioner, that the workman was never appointed in the sports quota, rather, he was appointed only on ad hoc basis in the year 1981, as Dispatcher Grade IV, and his services were regularised in 1984. 7. Assailing the impugned award, it is contended by the learned counsel for the petitioner, that the workman was never appointed in the sports quota, rather, he was appointed only on ad hoc basis in the year 1981, as Dispatcher Grade IV, and his services were regularised in 1984. It was also alleged, that the workman was a habitual absentee and in this process he remained absent in the year 1997, and, therefore, a charge-sheet was issued on 3-3-1998, still no explanation was given, then the enquiry officer was appointed, whose notices could not be served and the notices were required to be published in local newspaper, and still the workman did not appear, and ex parte enquiry was conducted, and even after receipt of the enquiry report, even the fresh notice could be got served only by publication, thereupon the workman submitted an explanation on 25-12-1998, which was not found satisfactory, and as such the punishment order was passed. It was pleaded in para-7 of the writ petition, that the workman absented for 51 days in the year 1993, 91 days in the year 1994, 141 days in the year 1995, 231 days in the year 1997, and during entire year 1998, he did not show up. It was pleaded that the petitioner has filed as many as 20 documents before the learned Labour Court. It is contended, that when the departmental enquiry has not been assailed, the learned Labour Court could not interfere with the quantum of punishment, more particularly, when it is clearly established from the material on record, that the workman was a habitual absentee, and had already been punished in the past. It was also contended, that the learned Labour Court has erred in observing that the averments of the workman have not been controverted on the side of the petitioner. The observations were contended to be clearly contrary to the reply filed on behalf of the petitioner, before the learned Labour Court, copy whereof has been produced with the writ petition as Annexure 2, wherein it was specifically contended that the workman was not appointed in sports quota. The observations were contended to be clearly contrary to the reply filed on behalf of the petitioner, before the learned Labour Court, copy whereof has been produced with the writ petition as Annexure 2, wherein it was specifically contended that the workman was not appointed in sports quota. Likewise the averments of the workman sustaining injuries, and becoming of ill-health were all controverted, and since the finding of the learned Labour Court is basically based on the fact, that according to the learned Labour Court, the petitioner did not controvert the facts, the finding is bad. Thus, according to the petitioner, there was no justification available to the learned Labour Court, to interfere with the quantum of punishment, and, therefore, the impugned order is liable to be set aside. Learned counsel placed reliance on the judgment in Vijay Singh v. Management, Shri Swetamber Nakoda Parashwnath Tirth Mewa Nagar, 1999(1) Raj LW 314 , Maan Singh v. Union of India, 2003(2) SCT 84 (SC) : (2003)3 SCC 464 , Chief Conservator of Forest v. Collector, (2003)3 SCC 472 : AIR 2003 SC 1805 , Divisional Forest Officer v. Raghuvar Singh, 2002(3) SCT 985 (Rajasthan) : 2002(3) Raj LW 1374 and Chairman & Managing Director, UCO Bank v. P.C. Kakkar, 2003(1) SCT 1033 (SC) : (2003)4 SCC 364 . Then assailing the award of 50% back wages, reliance was placed on Government of Tamil Nadu v. K. Rajaram Appasamy, 1997(3) SCT 67 (SC) : (1997)5 SCC 57 . 8. On the other hand, learned counsel for the respondent contended that there is ample material on record, to show that the workman was appointed under sports quota, as per rules, and policies laid down by the Central Government in this behalf, and that, after giving appointment, the workman was never given benefit of sportsman, as such, rather, till then no policies were framed by the petitioner, and, therefore, the workman had to put in hard labour, and thereafter he had to go for practice. It is also contended, that after serving for about 12 years, the workman had started pain in his joint, and required bed rest, and hence could attend the office for few months, but the petitioner intentionally served a charge-sheet upon the respondent, which could not be received by the workman, the enquiry was mala fide and arbitrarily conducted ex parte, and after receipt of the notice, he submitted his explanation, which was not considered by the enquiry officer, as well as by the disciplinary authority. It was also contended, that the employer has admitted in his written statement, that the workman had played for the petitioner many times, and had won various tournaments. So far as the habitual absence is concerned, it was contended, that figures given by the employer do not show the true picture, rather, the workman could not attend the office due to ill-health, related to sports. It is contended that the learned Labour Court has considered the claim, as well as the reply, and the documents, and the material on record, and has given finding, that the respondent was appointed in sports quota, and the absence has rightly been assigned to his ill-health, and joint pains related to sports, as such the punishment has rightly been found to be excessive. Further contention raised was that even if the workman had remained absent, his service could not be terminated without complying with the provisions of Section 25 of the Industrial Disputes Act. Another objection raised, during the course of argument, is that his previous absence was not subject-matter of charge, as such, it is contended that the writ petition is required to be dismissed. 9. I have considered the submissions, and have gone through the record, so also various judgments cited by the learned counsel for the parties. 10. Another objection raised, during the course of argument, is that his previous absence was not subject-matter of charge, as such, it is contended that the writ petition is required to be dismissed. 9. I have considered the submissions, and have gone through the record, so also various judgments cited by the learned counsel for the parties. 10. At the outset, it may be observed, that a look at the impugned award shows, that the whole thrust of the award is, that various averments of the petitioner have purportedly been recapitulated by the learned Labour Court, about his having been appointed in the sports quota, there being no facility to the sportsmen, workman being made to discharge his duties from 8 A.M. to 4.30.P.M., and thereafter had to undertake practice, while such employees in other establishment are not to discharge full time duty, the workman having suffered injuries during sports events, and practice, and on that count, having suffered ill-health after 12 years sports career, and then, on account of that, occasionally he remained absent; which averments have not been controverted on the side of the petitioner. 11. In my view, this observation is fundamentally wrong, rather there is no material placed, either before this Court, or even before the learned Labour Court by the workman, even to substantiate any of these averments, except that, in the claim petition this was the pleading. I may at once refer to Annexure-2, which is the reply filed before the learned Labour Court, wherein in para-4 a categoric stand had been taken, that the workman was not employed in sports quota, then, other pleadings were also denied. Para-7 of the claim, wherein a stand was taken about the workman entertaining ill-health after 12 years of sports career, and on that count he being required to occasionally remain absent from duty, after due information to the employer, was specifically denied, and it was pleaded, that the workman was habitual to remain absent, and in that sequence, the details of the absence were given, as mentioned in earlier part of the judgment. Not only this, in para-9, specific pleading was taken, to the effect that, for his previous absence, disciplinary proceedings had been taken against the workman, time and again, and taking a sympathetic view, he had always been left with mild punishment including that of being censured, and thereafter when he did not improve, he had been terminated from service. On the face of these pleadings, it cannot be said, that the employer has not controverted the stand taken by the workman. 12. That being the position, i.e. the award being an outcome of patent misreading of the record, rather even the pleadings, the conclusions recorded in the award, about the punishment being disproportionate, cannot be sustained. 13. In that view of the matter, I called upon the learned counsel for the workman, to show, as to what material was placed before the learned Labour Court, to substantiate any of the averments made in the claim Petition, Annexure-1, but then, the learned counsel could not point out any such material, to have been placed before the learned Labour Court, nor could he point out any material to have been produced before this Court. So much so, that to find out the prima facie reliability of the pleadings, about the workman being occasionally required to remain absent, learned counsel was asked some broad details, about the cause of absence, any medical certificate, or the frequency of the ailment, and its length of time, because as noticed above, apart from the absence for the period in question being 231 days in the year 1997, there was track record of long absence in the past, being 51, 91 and 141 days, but then the learned counsel could not give any reply, much less a plausible one. It is required to be comprehended, that according to para 7 of the claim petition, it was on account of change of season that the workman had suffered some pain, and for that he was required to remain absent, but then, on the face of it, it cannot be believed, that even if any such thing was there it required the absence to be for 51, 91 and 141 days, apart from 231 days absence in the year 1997. Then a look at Annexure-3, the punishment order, shows that, the disciplinary authority has also noticed, that even before serving charge-sheet, a specific notice was given to the workman, to join the duties within 48 hours, and it was also mentioned therein, that if the workman is ill, he should forward the necessary medical certificate, and should appear for medical examination in Central Hospital, but to no good. It was also noticed, that thereafter, in the entire year 1998, the workman absented for all the 365 days. 14. In this background, a look at Annexure-4 shows, that the learned Labour Court has referred to some of the judgments, which had no bearing on the controversy involved in the present case, inasmuch as, in Babulal v. Union of India, 2001(1) SCT 961 (Rajasthan) : 2000(1) Rajasthan LR 631 , the question to be considered was, that while giving punishment of compulsory retirement, the previous absence, which was regularised as leave without pay, had been taken to be the absence, while this court held that when the absence was condoned, the compulsory retirement order cannot sustain. Similar was the state of affairs, in Jamila v. State, 2002(2) SCT 521 (Rajasthan) : (2002)1 Raj LR 608. But then, now Hon'ble the Supreme Court, in Maan Singh's case, has clearly held, that additional statement in the later part of the order, that the period of absence be treated as leave without pay, does not amount to condonation of absence, and does not vitiate the dismissal. Thus, reliance on the above judgments, in Babu Lal and Jamila's cases is wholly irrelevant. Then so far as the decision in Management Lokshikshahana Trust No. 2 Bangalore v. Presiding Officer, Labour Court, 2000(4) SCT 1100 (SC) : 2000(86) FLR 612 is concerned, therein the workman was removed on account of his taking part in strike. While in Scooter India Ltd. v. Labour Court, 1989 Lab IC 1043 (SC) the question was, as to whether the learned Labour Court can interfere in the quantum of punishment. Then in Delhi Cloth & General Mills v. Sri Ram Fertilizers Karamchari Union, 1989 Lab IC 490 (Raj) the allegation was about the threatening to the workman, and on that ground the workman had been removed from service. Then in Delhi Cloth & General Mills v. Sri Ram Fertilizers Karamchari Union, 1989 Lab IC 490 (Raj) the allegation was about the threatening to the workman, and on that ground the workman had been removed from service. Suffice it to say, that the ratio of these cases, can hardly be said to be having any bearing on the present controversy, looking to the nature of absence, length of absence, and the past conduct of the workman, about being a habitual absentee, for which the workman having already suffered mild departmental punishments, in the past. 15. Thus, in my view the reasons given by the learned Labour Court, for interfering with the punishment, are wholly irrelevant, based on misreading of the record, and rather non est, in the present case. I may at this place refer to the judgment of Hon'ble the Supreme Court in Director General, RPF v. Ch. Sai Babu, (2003)4 SCC 331 , wherein Hon'ble the Supreme Court has held, that punishment imposed by disciplinary authority normally should not be disturbed by High Court, or a tribunal, except in appropriate cases, and that too after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all relevant factors, including the nature of charge proved, past conduct, penalty imposed earlier, nature of duties, having due regard to their sensitiveness, exactness expected, discipline required to be maintained, and the department/establishment concerned in which the delinquent concerned works. Likewise in P.C. Kakkar's case, 2003 Lab IC 1202 (SC), the scope of judicial review, in the matter of quantum of punishment, was laid down, and it was held as under:- "11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision. 12. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision. 12. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed." 16. Therefore, unless the punishment imposed by the disciplinary authority or the Appellate Authority, shocks the conscience of the court/tribunal, there is no scope for interference. 17. In the present case, as noticed above, it is rather the Labour Court, which has adopted an erroneous decision making process, and arrived at erroneous decision, about the quantum of punishment. In that view of the matter, I am left with no option, but to set aside the impugned award Annexure-4, and to revive the punishment order Annexure-3. 18. The writ petition is accordingly allowed. The impugned award Annexure-4, is set aside, and the punishment order Annexure-3 is revived. Obviously, so far the dispute referred to the Labour Court is concerned, it is required to be, and it is answered in the manner, that the termination of the workman concerned was perfectly legal and justified, and the workman is not entitled to any relief. The parties shall bear their own costs of this writ petition.Petition allowed. *******