JUDGMENT : R. SUBHASH REDDY, J. 1. This Letters Patent Appeal under Clause-15 of the Letters Patent is filed by the original respondent-workman in Special Civil Application No. 2980 of 2015, aggrieved by the order of the learned single Judge dated 16.2.2016 passed in the said petition. By the aforesaid order, the learned single Judge allowed the Special Civil Application filed by the present respondents-employers under Article 226 of the Constitution of India, challenging the award passed by the Labour Court, Ahmedabad, dated 24.9.2014 in Reference (L.C.A.) No. 992 of 2004. 2. The appellant joined the respondent-institution as Conductor in the year 1981 and was working as such since then. On the allegation of unauthorized absence, disciplinary proceedings were initiated against him. The unauthorized absence alleged against him was for a period of 6 years between 1998 and 2003. The dates and years of the alleged unauthorized absence as stated in the Special Civil Application are as under:- S. No. Year Days 1. 1998 277 2. 1999 347 3. 2000 366 4. 2001 365 5. 2002 361 6. 2003 (till now) 334 3. Based on the findings recorded by the Inquiry Officer on the aforesaid misconducts, the respondent-workman was dismissed from service on 10.3.2004 by the disciplinary authority. Against such dismissal order, the appellant-workman raised an industrial dispute which was referred to the Labour Court, Ahmedabad being Reference (L.C.A.) No. 992 of 2004. 4. The learned Labour Court, by award dated 24.9.2014 exercised power under Section 11-A of the Industrial Disputes Act, 1947 (“the Act” for short) and set aside the order of dismissal of the appellant-workman and as much as the appellant-workman had attained the age of superannuation, directed the respondent-employer to grant all retiral benefits by extending continuity of service but without back wages. 5. Questioning the validity of the award dated 24.9.2014 passed by the learned Labour Court, the respondent-employer approached this Court by filing Special Civil Application No. 2980 of 2015 under Article 226 of the Constitution of India. The learned single Judge took into consideration the previous misconducts alleged by the respondent-employer and held that discretion exercised by the Labour Court under Section 11-A of the Industrial Disputes Act was unjustified. As such, the award of the Labour Court was quashed and set aside by the learned single Judge. 6. In this appeal, it is contended by Mr. The learned single Judge took into consideration the previous misconducts alleged by the respondent-employer and held that discretion exercised by the Labour Court under Section 11-A of the Industrial Disputes Act was unjustified. As such, the award of the Labour Court was quashed and set aside by the learned single Judge. 6. In this appeal, it is contended by Mr. K.I. Kazi, learned counsel for the appellant that in view of the power conferred under Section 11-A of the Industrial Disputes Act, 1947, the Tribunal exercised power by awarding lesser punishment by quashing the order of dismissal, but the learned single Judge has set aside such award without recording valid reasons. It is submitted that the previous alleged misconducts of the appellant-workman are without any basis, no proceedings were initiated on such alleged previous misconducts of the appellant, as such, the learned single Judge ought not to have considered the plea of the respondent-employer for setting aside the award passed by the Labour Court, in exercise of power under Article 226 of the Constitution of India. It is submitted that the appellant was employed from the year 1981 and though he worked for more than 20 years, he will be deprived of the retiral benefits if the order of the learned single Judge is not set aside. In support of his arguments, learned counsel for the appellant has placed reliance on the judgment of the Allahabad High Court in the case of Amirullah Khan v. State of U.P. reported in 2007 (1) AWC 994. 7. On the other hand, Mr. Deep D. Vyas, learned counsel appearing for the respondent-employer would contend that in view of proved misconducts of unauthorized absence of 6 years, the disciplinary authority has passed order of dismissal and further in spite of the previous misconducts of the workmen, the Labour Court erroneously exercised the power under Section 11-A of the Industrial Disputes Act, 1947. It is submitted that as such, the learned single Judge has rightly set aside the award passed by the Labout Court. It is further submitted that it is always open to consider the previous misconducts of the delinquent-employee while imposing penalty on the basis of the findings recorded by the inquiry officer. It is submitted that as such, the learned single Judge has rightly set aside the award passed by the Labout Court. It is further submitted that it is always open to consider the previous misconducts of the delinquent-employee while imposing penalty on the basis of the findings recorded by the inquiry officer. Learned counsel, in support of his argument placed reliance on the judgment of the Hon'ble Supreme Court in the case of L&T Komatsu Ltd. v. N. Udaykumar, reported in (2008) 1 SCC 224 . 8. In this case, it is not in dispute that the appellant-workman was appointed as Conductor in the respondent-institution in the year 1981. The disciplinary proceedings were initiated for unauthorized scattered absence during the years from 1998 to 2003. In view of the findings recorded on such charges in the disciplinary proceedings, the workman was dismissed from service. As much as the findings recorded in the inquiry proceedings were not challenged, the Labour Court, having regard to the nature of the charge has exercised power under Section 11-A of the Industrial Disputes Act, 1947. Under Section 11-A of the Industrial Disputes Act, 1947, in course of adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, if is satisfied that the order of discharge or dismissal was not justified, it is empowered to set aside such order of discharge or dismissal and award any lesser punishment in lieu of punishment of discharge or dismissal. As per proviso to Section 11-A of the Act, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. The respondents have referred to the previous misconducts of the workman in tabular form in the Special Civil Application which are quoted as under:- S. No. Misconduct Nos. 1. Absentism 8 2. Theft 1 3. Unsolicited Behaviour 2 4. Remainder Sales Amt. 8 5. Misc. Misconducts 75 Total 94 9. In the Special Civil Application, the appellant-workman herein has filed affidavit in reply. There is specific averment in the affidavit in reply with regard to previous misconducts of 1994 and there is categorical averment that there were no proceeding initiated against the appellant in connection with such misconducts alleged by the respondents against the appellant-workman. Misconducts 75 Total 94 9. In the Special Civil Application, the appellant-workman herein has filed affidavit in reply. There is specific averment in the affidavit in reply with regard to previous misconducts of 1994 and there is categorical averment that there were no proceeding initiated against the appellant in connection with such misconducts alleged by the respondents against the appellant-workman. It is clear from the record that there is no rejoinder disputing the said averment. Even from the previous misconducts of 1994 mentioned above, 75 are shown as miscellaneous misconducts, 2 unsolicited behaviour, 8 late absenteeism etc. When it is the specific case of the appellant-workman that there was no proceeding initiated against him in connection with such previous misconducts, the learned single Judge has committed error in taking note of such previous misconducts and interfered with the award of the Labour Court which is passed in exercise of power under Section 11-A of the Act. The judgment of the Hon'ble Supreme Court in the case of L & T Komatsu Ltd. (supra) is not helpful to the case of the respondent-employer having regard to the facts of this case. In the aforesaid judgment, the Hon'ble Supreme Court has held that when the workman who had been in the past found guilty of unauthorized absenteeism several times in properly conducted departmental inquiry, such misconducts can be taken into consideration for denying the benefit under Section 11-A of the Act. In the present case, there is nothing on record to prove that the previous alleged misconducts are proved against the appellant-workman in any inquiry proceedings. In the affidavit in reply filed in the Special Civil Application, it is, in clear terms, stated by the appellant-workman that no proceedings were initiated against him in connection with the previous alleged misconducts, for which there is no rejoinder filed by the respondent-employer. In the absence of such rejoinder or any other cogent evidence on record, merely based on the entries made in the service record without conducting any inquiry, such previous misconducts could not have been taken into consideration by the learned single Judge for interfering with the award of the Labour Court. In the absence of such rejoinder or any other cogent evidence on record, merely based on the entries made in the service record without conducting any inquiry, such previous misconducts could not have been taken into consideration by the learned single Judge for interfering with the award of the Labour Court. At the same time, as it is clear that unauthorized absence of the appellant-workman during the years from 1998 to 2003 is proved, the workman is not entitled to the benefit of continuous service for the purpose of calculating increments notionally to determine the benefits of pension etc. 10. For the aforesaid reasons, we allow this Letters Patent Appeal and set aside the order of the learned single Judge and restore the award passed by the Labour Court, Ahmedabad and further hold that the period up to the date of retirement of the appellant-workman shall be counted for the purpose of pension, without giving benefit of increments notionally also for the years from 1998 to 2003. All the retirement benefits shall be extended to the workman as referred above within a period of two months from the date of receipt of this order.