Judgment :- 1. A Public Road Transport Corporation, aggrieved by the award dated 17.9.2009 in Reference No.42/2008 Annexure-A in so far as it relates to directing reinstatement of the respondent to the post of Conductor together with continuity of service and other consequential benefits and 40% backwages and further to treat the period of absence of 2 years 5 months as leave at credit, and if not to be treated as leave without pay. 2. Respondent, whilst a Conductor in the Chikmagalur depot of the petitioner-Corporation, when issued with an order of transfer dated 9.4.2005 posting him to serve at Sakleshpur depot, a distance of 15-20 kms. by road, failed to report to duty at the place of posting and remained absent thereafter, up-to 29.9.2007 following which, disciplinary proceeding was initiated by issuing an articles of charge Ex.M-12 dated 17.8.2005. Respondent, by reply Ex.M-13 stated to be suffering from jaundice and hence unable to report to duty and in addition to have lodged a complaint with the Lokayuktha police against one B.Boraiah, Assistant Administrative Officer of Chikmagalur division of the petitioner – Corporation, registered as Spl. Case No.11/2007, following which Boraiah allegedly threatened the respondent of dire consequences. The Disciplinary Authority, not being satisfied with the explanation offered and being of the opinion that there were grounds to enquire into the truth of the charge, appointed an Inquiring authority, who after extending reasonable opportunity of hearing to the respondent, submitted a report Ex.M-44 holding the charge proved. The Disciplinary Authority issued a show-cause notice Ex.M-47 to which the respondent submitted a reply. The Disciplinary Authority, not being satisfied with the reply and having regard to the material on record held the respondent guilty of the charge, which was a grave misconduct, coupled with the fact that the petitioner’s past record of service disclosed imposition of minor penalties on four occasions, for unauthorisedly absence being extenuating circumstances and not mitigating circumstances by order dated 25.9.2007 dismissed the respondent from service. 3. Respondent initiated conciliation proceedings, over the dismissal from service, resulting in failure report of the conciliation officer, followed by an order dated 16.12.2008 of the State Government referring the industrial dispute for adjudication to the Labour Court at Chikmagalur, registered as Reference No.42/2008. Respondent filed a claim statement which was resisted by the petitioner, arraigned as second party, on notice, by filing counter statement. Respondent filed a claim statement which was resisted by the petitioner, arraigned as second party, on notice, by filing counter statement. The Labour Court, in the premise of pleading of parties, framed an additional issue over the validity of the domestic enquiry and parties having lead in oral and documentary evidence, by order dated 3.8.2009, answered the aforesaid issue in the affirmative holding the domestic enquiry as fair and proper. 4. Respondent, when further examined as WW-1 on the allegation of victimization, 16 documents were marked as Exs.W-1 to W-16. While the petitioner examined one Lokesh Shetty as MW-2 and produced documents marked as Exs.M-46 to M-51. The Labour Court, having regard to the material on record and the evidence, both oral and documentary, recorded a finding of fact that the respondent failed to establish his defence of having suffered from jaundice for the period from 8.4.2005 to 29.9.2007, the reason for abstaining from duties and accordingly did not find fault with the finding recorded by the Inquiring Authority as well as the Disciplinary Authority on the charge of unauthorised absence. Labour Court, keeping in mind the length of service put in by the respondent, the past record of service disclosing unauthorisedly absent on four occasions, visited with minor punishments, held that the respondent was not a chronic absentee, when compared to many other cases before the Labour Court challenging dismissal from service by remaining absent unauthorisedly and therefore, past misconduct was not a proper basis for imposition of the major punishment. In addition, the Labour Court recorded a finding that there was no material to establish that the transfer order dated 9.4.2005 was by way of victimizing the respondent for having lodged a complaint with the Lokayuktha police against the Asst. Administrative Officer at Chikmagalur depot. The Labour Court concluded that the punishment of dismissal from service was disproportionate to the gravity of misconduct proved and exercising discretion under Section 11A of the Industrial Disputes Act, accordingly interfered with the punishment by setting aside the order of dismissal, and directing reinstatement of the respondent to the original post with 40% backwages and to treat the absence as leave at credit and if not, as leave without pay by award dated 17.9.2009, impugned. 5. 5. Learned counsel for the petitioner contends that the Labour Court, having recorded a finding that the Inquiring Authority and the Disciplinary Authority were fully justified in concluding that the charge of unauthorised absence from 8.4.2005 to 29.9.2007 was proved, fell in error in interfering with the punishment of dismissal on the premise that unauthorised absence on four occasions in the past for which minor punishments were imposed, could not have been a proper basis for imposition of major punishment. Learned counsel further contends that the Labour Court, having come to a conclusion over the respondent’s guilt of having remained unauthorisedly absent, fell in error in holding that the punishment of dismissal was disproportionate to the gravity of misconduct and in the absence of mitigating circumstances, was not justified in interfering with the order of dismissal to one of reinstatement with 40% backwages, much less to treat the period of absence against leave at credit and if not as leave without allowance. 6. Per contra, learned counsel for the respondent – workman seeks to support the award impugned as being well merited, fully justified and not calling for interference. According to the learned counsel, Labour Court, having exercised its extra-ordinary jurisdiction under Section 11A of the Industrial Disputes Act, in the circumstances, the award impugned does not call for interference. 7. Before proceeding to consider the contentions advanced by the learned counsel for the parties, it is useful to refer to the observations in the following reported opinions: (1) ‘DIVISIONAL CONTROLLER, NWKRTC, BAGALKOT v. RAGHAVENDRA MADHAVA KATTI’ reported in ILR 2001(4) KAR 4199, whence a Division Bench of this Court followed the observation of the Hon’ble Supreme Court in the case of ‘M/s. BURN AND CO. LTD v. THEIR WORKMEN AND OTHERS’ reported in AIR 1959 SCC 529 holding that unauthorised absence is gross misconduct and gross violation of discipline and that it cannot be disputed that unauthorised absence greatly jeopardizes the functioning of the establishments and particularly if a driver of a road transport corporation remains absent it will certainly have serious repercussions on the functioning of the Corporation and hinder services to the public for which the said Corporations have been brought into existence under the provisions of the Road Transport Corporation Act, 1951 requiring to treat such dereliction of duty with certain amount of seriousness. The Division Bench further followed the observation in the case of ‘KERALA SOLVENT EXTRACTIONS LTD. v. A.UNNIKRISHNAN AND ANOTHER’ reported in 1994 II LLJ 888 deprecating judicial tendencies to grant unwarranted reliefs by mere basing on misplaced sympathy, generosity and private benevolence. (2) ‘DELHI TRANSPORT CORPORATION v. SARDAR SINGH’ reported in AIR 2002 SCC 4161: The Apex Court, having regard to the absence of the employee, observed that the conduct of the employee 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. 8. In L&T Komatsu Ltd. Vs. N.Udayakumar (2008) 1 SCC 224 , the Apex Court held that where the workman, who had been in the past found guilty of unauthorised absenteeism several times, was, in a properly conducted departmental enquiry once again found guilty of unauthorised absence for a long period (in that case 105 days), held, his consequential dismissal from service ought not to have been treated to be harsh and interfered with by Labour Court / High Court. In addition, the Apex Court followed with approval its earlier decision in Mahindra and Mahindra Ltd. v. N.B. Narawade (2005) 3 SCC 134 at para 20 which reads as thus: “20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes 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 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.” 9. Applying the authoritative pronouncements supra, to the factual matrix, it goes without saying that the Labour Court was not justified in recording a finding that it was not proper for the Disciplinary Authority to impose the punishment of dismissal by considering the unauthorised absence in the past, on four occasions, whence the respondent was imposed with minor punishments, followed by a properly conducted departmental enquiry, whence the respondent was found guilty of unauthorised absence for 2 years 5 months. The Labour Court’s interference with the punishment of dismissal, since habitual absence is gross violation of discipline, by exercising discretion under Section 11A of the Act, in the circumstances is perverse and unsustainable. 10. The Labour Court having recorded a finding that the transfer order dated 9.4.2005 not being an of shoot of the complaint lodged by the petitioner against one Boraiah, the Asst. Administrative Officer at Chikmagalur depot, and hence not victimization, fell in grave error in interfering with the punishment of dismissal. In the circumstances, the award impugned calls for interference in exercise of extra-ordinary writ jurisdiction under Article 227 of the Constitution of India. 11. In the result, petition succeeds. The award of the Labour Court in so far as direction to reinstate the respondent into service with 40% backwages and to treat the period of absence as leave at credit and if not as leave without allowance, is quashed and in all respects remain unaltered. As a consequence the reference stands rejected.