JUDGMENT : N.V. Anjaria, J. 1. The present is filed under Articles 226 and 227 of the Constitution, wherein the petitioner-Gujarat State Road Transport Corporation has challenged judgment and award dated 27th August, 2014 passed by Labour Court, Bhuj-Kutch in Reference No. 20 of 2010, whereby the Labour Court set aside the action of petitioner-employer in terminating the services of respondent-workman, directing to reinstate him on his original post with continuity of service and consequential benefits with 50% back wages. 2. The respondent-workman invoked the jurisdiction of Labour Court raising industrial dispute in respect of termination of services effected from 25th May, 2006, praying for reinstatement and full back wages. It was the case of the workman before the Labour Court in his statement of claim at Exhibit 4 that he was working under the first party employer since last 20 years as Conductor in the pay-scale of basic Rs. 02,550/-. It was his case that the termination of his services pursuant to departmental inquiry was based on wrongful findings of the Inquiry Officer and the same was illegal. The petitioner-Corporation contested the Reference by filing written reply at Exhibit 10. 3. As per the facts on record, the second party workman was employed as Conductor and was posted at Anjar Depot, he came to be served with chargesheet dated 03rd August, 2005 in respect of charges of unauthorized absence from duty; he remained on unauthorized leave without prior approval from 07th February, 2005 till 18th February, 2005. The case of the Corporation is that though a letter dated 03rd August, 2005 was sent to the workman through Registered Post A.D. asking him to resume the duty, the said letter was not accepted by the workman and the same returned with postal endorsement "unclaimed". The workman did not submit any report or explanation for his leave which resulted into the aforesaid chargesheet for the said misconduct. 3.1 It appears that the workman did not file a reply to the chargesheet nor remained present in the inquiry proceedings. The case of the workman was however that he had addressed letters dated 07th February, 2005 and 06th August, 2005 to the Divisional Controller, Bhuj seeking leave along with medical certificate. The workman stated therein the reason for remaining leave that he suffered chest pain and was under depression. The case of the workman was however that he had addressed letters dated 07th February, 2005 and 06th August, 2005 to the Divisional Controller, Bhuj seeking leave along with medical certificate. The workman stated therein the reason for remaining leave that he suffered chest pain and was under depression. The said reports were before the Labour Court at Exhibit 17 and 18; further report dated 06th February, 2006 appears to have been sent which was Exhibit 19. Those reports were not produced in the inquiry and were not before the Inquiry Officer. 3.2 In the proceedings before the Labour Court, the second party workman filed Purshish at Exhibit 12 whereby he gave up contention regarding legality and procedural fairness of the inquiry. The Labour Court examined the inquiry report, observed that the workman remained absent in the inquiry proceedings nor had he filed reply to the chargesheet. It however further observed that the Inquiry Officer had before it the evidence of Reporter and the statement of other witnesses. The Labour Court ruled that the findings recorded in the departmental inquiry were proper and legal and they were not perverse. It however referred to and relied upon the aforementioned letters dated 07th February, 2005, 06th August, 2005 and 06th February, 2006 which were exhibited without any objection from the other side, to hold that the said were the leave reports, which though were not part of papers in the inquiry, could not have been overlooked. The Labour Court thereafter proceeded to reason that those letters (Exh.17, 18 and 19) were addressed by the workman, the absence of the workman could not be termed as misconduct, and further that the order of dismissal was therefore unjust. 4. Learned advocate Mr. Hardik C. Raval for the petitioner assailed the judgment and award of the Labour Court for both of its parts whereby it directed reinstatement and awarded 50% back wages. It was submitted that workman was Conductor and was holding a post of confidence, the conduct on his part to remain unauthorisedly absent without prior approval resulted into serious administrative difficulties for the Corporation, because when a Conductor remains absent without prior leave report, the entire arrangement of duties of Conductor and the bus-schedule go haywire, as a result of which passengers who are general public suffers. Learned advocate for the applicant therefore submitted that the misconduct of unauthorized absence was a serious misconduct which would not be viewed leniently in any respect including for the purpose of punishment. 4.1 Learned advocate for the petitioner further submitted that the workman not only remained unauthorizedly absent, he later chose not to remain present in the inquiry proceedings. He submitted that several opportunities were given to the workman to remain present in the inquiry proceedings by addressing series of letters dated 21st September, 2005, 19th October, 2005, 26th October, 2005 and 27th January, 2006. Since even after the last opportunity, the workman did not remain present the inquiry had to proceed in absence, submitted learned advocate for the petitioner. He submitted that the so-called letters-cum-report which were produced before the Labour Court (Exh.17, 18 and 19) were sent to the Divisional Controller of the Corporation, which was of no consequence as far as the proceeding of the inquiry was concerned. It was submitted that the workman ought to have produced those letters showing cause for his absence in response to the chargesheet or even in course of the inquiry before the Inquiry Officer by remaining present. 4.2 It was submitted that the defence of the workman could not be believed for the reason not only that he never remained present in the inquiry proceedings, but also because of the fact that no substantial cause of illness was shown by the workman. What is stated even in the said letters that he had pain in the chest and attack of depression due to which he was advised rest. Learned advocate for the petitioner submitted that the explanation put-forth for absence was not really convincing and looked more as an excuse rather than a genuine ground. He further submitted that the reasoning of the Labour Court is totally inconsistent. He further submitted that in the facts and circumstances of the case, penalty of dismissal was proportionate and therefore proper. 4.3 Learned advocate for the petitioner in support of his submission, pressed reliance on the following decisions-(i) Maganbhai L. Chauhan v. Divisional Controller, G.S.R.T.C. [1997(1) GLH 527], (ii) L&T Komatsu Limited v. N. Udaykumar [ (2008) 1 SCC 224 ], (iii) North-Eastern Karnatak RT Corporation v. Ashappa [ (2006) 5 SCC 137 ], and (iv) Om Prakash v. State of Punjab and others [ (2011) 14 SCC 682 ]. 4.4 On the other hand learned advocate Mr. Darshan Varandani vehemently supported the impugned judgment and award. He submitted that the entire charge that the respondent remained absent without leave was baseless in as much as the workman had addressed letters reporting to the Divisional Controller requesting to sanction leave on the medical ground. He referred to the afore-mentioned letters Exhibit 17, 18 and 19, and contended that firstly the workman prayed for sanctioning leave upto 06th August, 2005 and again by another letter dated 06th August, 2005, further leave upto 06th February, 2006 and again by letter dated 06th February, 2006, leave upto 06th August, 2006 was requested for. He submitted that clear reason of illness was stated in those reports and medical certificate was also annexed. He further submitted that the case of the Corporation about workman having not remained present in the inquiry proceedings was ill-founded because in the aforesaid letters, he had given his address, yet the alleged intimations to remain present in the inquiry were sent to the old address. 4.5 Learned advocate further submitted that given the aforesaid factual background coupled with the nature of misconduct for which the action was taken, which was of unauthorized absence, the penalty of dismissal has been rightly held to be unjust by the Labour Court. It was further submitted that when the Labour Court reached a finding that the absence did not amount to misconduct because medical reports were sent as above, the entire case of the Corporation collapsed. Viewed from this standpoint, learned advocate submitted, that the order of grant of 50% back wages was just and proper. 4.6 Learned advocate for the respondent-workman relied on following decisions-(i) Mavji C. Lakum v. Central Bank of India [ (2008) 12 SCC 726 ]; (ii) Raghubir Singh v. General Manager, Haryana Roadways, Hissar [ (2014) 10 SCC 301 ], (iii) Divisional Controller, S.T. Corporation, Palanpur v. Naranbhai Somnath Nayak [2001 (4) GLR 3691]. 4.7 In Chennai Metropolitan Water Supply and Sewerage Board and others v. T. Murali Babu, (2014) 4 SCC 108 ], the misconduct committed by the respondent was unauthorized absence, and the Supreme Court considered proportionality of quantum of punishment. It held that it was not necessary for the disciplinary authority to record finding of willful absence even when the employee failed to show compelling circumstances for remaining absent. It held that it was not necessary for the disciplinary authority to record finding of willful absence even when the employee failed to show compelling circumstances for remaining absent. It was held that it was also not necessary to plead habitual absenteeism. In that case having regard to the long absence from service by the respondent who was a Junior Engineer who remained absent from 28.08.1995 to 31.03.1997 and who did not respond to the memos by offering any explanation, the penalty of dismissal was held to be proper by the Supreme Court. However it was observed that otherwise absence of an employee as a misconduct cannot be put into a straight jacket formula for imposition of punishment, which ultimately depends upon various factors. 5. In judging the seriousness of misconduct of absence without leave vis-à-vis the aspect of proportionality of punishment to be imposed, the relevant factors, without being exhaustive, are the length of period of absence, the conduct of the employee, the reason for not seeking a prior leave and to judge in ultimate analysis whether the absence could be said to be a willful absence. At the same time, if no satisfactory explanation is offered by the delinquent for his unauthorized absence, the element of willfulness may take a back-seat. Similarly the long period of unauthorized absence without any leave or explanation, could amount to a serious misconduct in itself. 5.1 In the present case, it is true that the workman did not remain present in the departmental inquiry which therefore, proceeded ex-parte. At the same time it was not that the workman never informed the employer and did not ask for leave. The communications (Exh.17, 18 and 19) which were before the Labour Court addressed by the workman to the Divisional Controller, Bhuj of the Corporation were in the nature of report seeking permission to go on leave. Therein medical reason was stated and medical certificate was attached. The explanation for not remaining present in the inquiry as is coming-forth from the side of the workman is that, he was taking treatment at different town at Adipur which was near Anjar and that the letters sent asking him to remain present in the inquiry were at his address of Anjar. The explanation for not remaining present in the inquiry as is coming-forth from the side of the workman is that, he was taking treatment at different town at Adipur which was near Anjar and that the letters sent asking him to remain present in the inquiry were at his address of Anjar. According to him, in the aforesaid letters seeking leave, the address of Adipur was mentioned but the same was not taken note of by the employer and consequently letters sent at Anjar address returned unserved. Even as the aforesaid communications by the workman asking for leave was not before the Inquiry Officer, the factum thereof was not in dispute. Before the Labour Court they were allowed to be exhibited. What is sought to be contended on behalf of the Corporation was that it was the duty of the workman to remain present in the inquiry and to produce the said reports and the medical certificates. 5.2 As noted above, the workman addressed letters dated 07th February, 2005, 06th August, 2005 and again on 06th February, 2006 stating that he had suffered chest pain and was under medical treatment, for which he requested for leave in his first letter dated 07th February, 2005 and in subsequent letters requested for extension. The chargesheet was issued on 03rd August, 2005. Therefore it was not that the workman had never informed the employer. Though report dated 07th February, 2005 was sent as above, it was not noticed. The Corporation ought to have taken into account and could not plead ignorance. The reports-cum-letters were sent to the Divisional Controller who was otherwise a superior officer, an authority of the Corporation itself. In any view, the explanation and the report of the workman was sent and was with the Corporation, therefore it was not convincing contention that since the disciplinary authority did not have the same, it could not be taken into consideration. 5.3 In view of the above, penalty of dismissal for absence, even if to be treated as unauthorised, was harsh and unreasonable. It could not be said to be commensurate with the seriousness of misconduct alleged, for which the workman had otherwise sent his explanation. In that light, discretion exercised by the Labour Court under Section 11A of the Industrial Disputes Act, 1947 to annul the penalty of dismissal was proper. It could not be said to be commensurate with the seriousness of misconduct alleged, for which the workman had otherwise sent his explanation. In that light, discretion exercised by the Labour Court under Section 11A of the Industrial Disputes Act, 1947 to annul the penalty of dismissal was proper. On that score, the Labour Court did not commit any error. As fas as grant of back wages is concerned, granting of back wages to the extent of 50% was not based on any convincing consideration. The dismissal was as back as in the year 2006. The financial burden towards 50% back wages comes to more than Rs. 06,00,000/- as averred by the petitioner. Apart from financial burden, in the cross-examination the workman admitted that he was working as Helper Cook, thus was earning. Furthermore, relief of granting back wages is discretionary relief. Though the penalty of dismissal is found to be disproportionate, workman cannot be granted back wages. The grant of back wages by the Labour Court deserves to be set aside. 6. Even while holding that the dismissal was not a proportionate penalty as against the nature of misconduct, submission by learned advocate for the petitioner that due to sudden absence, the Corporation suffered administratively and in that way, the misconduct was serious, could not be lightly brushed aside. The workman remained absent for considerable long time even after sending the first report dated 07th February, 2005 to the Divisional Authority. The resultant adverse effect on the administration of the Corporation and the attendant circumstances would further require that the workman undergoes further punishment over and above denial of back wages. Even as the reinstatement is held justified, in order to balance the scales of proportionality of punishment, it is considered expedient that the workman, besides being denied the back wages, also undergoes withholding of increments. It would be appropriate if stoppage of four increments with cumulative effect is ordered by way of further punishment. 6.1 As a result of above reasons and discussion, the present petition is allowed in part. The impugned judgment and award of the Labour Court in so far as it grants 50% back wages to the workman is hereby set aside. It is directed further that the respondent shall however suffer stoppage of four increments with cumulative effect. The judgment and award of the Labour Court shall stand modified accordingly. 7. The impugned judgment and award of the Labour Court in so far as it grants 50% back wages to the workman is hereby set aside. It is directed further that the respondent shall however suffer stoppage of four increments with cumulative effect. The judgment and award of the Labour Court shall stand modified accordingly. 7. The part of the judgment and award setting aside the order of punishment of dismissal and consequentially granting reinstatement and continuity of service with further benefits is hereby maintained. The petitioner-Corporation shall reinstate the workman, if workman reports for duty with joining report and a simple copy of this order. Rule is made absolute to the extent aforesaid.