Judgment : 1. Petitioner- Road Transport Corporation aggrieved by the award dated 15-5-2010 insofar as it relates to exercise the discretion under Section 11-A of the Industrial Disputes Act, 1947 (for short, ‘ID Act’) to interfere with the order of dismissal to modify the punishment to one of a lesser punishment of withholding three increments with cumulative effect without back wages and consequential benefits, but with continuity of service for the purpose of terminal benefits not including increment, promotion, etc. has presented this petition. 2. There is no dispute that the respondent, a driver in the petitioner-Public Road Transport Corporation remained unauthorized absent from 2-3-2005 to 31-5-2006, for a year and two months, following which disciplinary proceeding was initiated, domestic enquiry held extending responsible opportunity of hearing followed by a report holding the charge proved, resulting in the order dated 19-7-2006 dismissing the respondent from the service. It is also not in dispute that while in service during the period of nine years, the respondent was visited with minor punishments on six occasions for having remained absent intermittently for 207 days. 3. Before the Labour court, the respondent-workman conceded to the validity of the domestic enquiry whence the preliminary issue was answered in the affirmative holding the enquiry as fair and proper. In the evidence let in by the respondent over victimization, for the first time medical records were produced which do not constitute material on record over the justification for the absence of the respondent due to medical treatment. A perusal of those records disclose the respondent having undergone medical check and reports opining that he did not suffer from any illness. The respondent’s assertions to have submitted leave applications when not accepted in the absence of a acknowledged copies of leave applications, the Labour Court concluded that the charge of unauthorized absence for one year and two months was established. So also the Labour Court observed that the respondent remained intermittently absent in the past for about 207 days whence he was visited with minor punishments/penalties on six occasions. 4. In the fact situation, absence from duty without prior permission or sanction of leave is indiscipline, while habitual absenteeism is gross indiscipline. So also the Labour Court observed that the respondent remained intermittently absent in the past for about 207 days whence he was visited with minor punishments/penalties on six occasions. 4. In the fact situation, absence from duty without prior permission or sanction of leave is indiscipline, while habitual absenteeism is gross indiscipline. Fact that respondent, when in the past, was punished for unauthorized absence did not have any reformatory effect but remained absent for one year and two months thereafter, proved to be unauthorised in an enquiry into the said charge, on being extended reasonable opportunity of hearing, it is needless to state that the respondent was a habitual absentee. 5. In the circumstances, there being no mitigating circumstances to impose a lesser punishment than dismissal from service, but extenuating circumstances resulting in the order of dismissal, the Labour Court, in my opinion feel in error in interfering with the order of dismissal to modify the punishment to a lesser punishment, and hence calls for interference with the award impugned. 6. It is useful to refer to the observations in the following reported opinions.- (i) A Division Bench of this Court in the case of Divisional Controller, North-West Karnataka Road Transport Corporation, Bagalkot versus Raghavendra Madhava Katti 2000(7) Kar. L.J. 487 (DB) : ILR 2001 Kar. 4199 (DB), followed the observation of the Supreme Court in the case of M/sBurn and Company Limited versus Their Workman and others AIR 1959 SC 529 : 1959-I-LLJ-450 (SC), holding that unauthorized absence is grave misconduct and grave violation of discipline, greatly jeoparadise the functioning of establishment, more appropriately all employees of Road Transport Corporation, remaining absent having serious repercussions on functioning of the Corporation and hindering of service to public for which the Corporations have been brought into existence under the Road Transport Corporations Act 1950, required treatment of such dereliction of duty with certain amount of seriousness. Their lordships of the Division Bench further followed the observations of the Apex Court in the case of Kerala Solvent Extractions Limited versus A. Unnikrishnan and Another 1994-II-LLJ-888 (SC) depreciating the judicial tendencies to grant unwarranted reliefs by mere basing on misplaced sympathy, generosity and private benevolence; (ii) In Delhi Transport Corporation versus Sardar Singh AIR 2004 SC 4161 : 2004 AIR SCW 4622, the Apex Court having regard to the absence from duties observed that the conduct of remaining absent without obtaining leave in advance is nothing but irresponsible in extreme and can hardly be justified. In addition, it was observed that it is the burden of the employee who claims that there was no negligence or lack of interest to establish it by placing relevant material; (iii) In L and T Komatsu Limited versus N. Udayakumar (2008)1 SCC 224 : 2007 AIR SCW 7906 : (2008)1 SCC (L and S) 164, the Apex Court held that if in the past the employee has remained absent without prior permission and thereafter commits the similar misconduct which is proved in a domestic enquiry after following the principles of natural justice, the habitual unauthorized absenteeism is grave indiscipline, and termination from service does not call for interference under Section 11-A of the I.D.Act; (iv) In Mahindra and Mahindra Limited versus N.B. Naravade (2005)3 SCC 134 : 2005 AIR SCW 1115, the Apex Court observed thus : “20. It is no doubt true that the after introduction of Section 11-A in the Industrial Dispute Act, certain amount of discretion is vested with the Labour Court/industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well-defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of the misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment”. 7. 7. Having regard to the principles laid down in the aforesaid reported opinions of the Apex Court and that of this Court, the award of the Labour Court call for interference, in exercise of extraordinary writ jurisdiction under Article 227 of the Constitution of India. In the result, the writ petition is allowed. The award impugned insofar as it relates to the Labour Court’s exercise of discretion under Section 11-A of the act to interfere with the order of dismissal and modifying the punishment to a lesser punishment is quashed And I.D. No. 40 of 2006 stands rejected.