JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Chauhan and Mr. Munshaw, learned advocates for the petitioner and Mr. Rathod, learned advocate for the respondent. 2. In present petition the petitioner Ahmedabad Municipal Transport Service (hereinafter referred to as "AMTS") has challenged the award dated 17.12.2005 passed by the learned Labour Court in Reference (LCA) No. 947 of 1999 whereby the learned Labour Court, after having taken into account the fact that the claimant workman crossed the age prescribed for superannuation directed the petitioner AMTS to pay all retiral benefits to the concerned workman by purportedly exercising power conferred by Section11-A of the Industrial Disputes Act (hereinafter referred to as the "Act"). 3. Learned labour Court has specifically reached to the findings and conclusions that the allegation and charge against the respondent of habitually remaining absent without leave and the allegation and charge that claimant - workman continuously remained absent without leave from 2.2.1997 to 17.5.1997 are proved and also having reached to the conclusion that even during the departmental inquiry the respondent workman did not remain present and having also reached to the conclusion that the domestic inquiry conducted against the claimant - workman is legal and proper and does not suffer from any defect and also having reached to the conclusion that the findings recorded by Inquiry Officer are correct and just, the learned labour Court interfered with the penalty order passed by the petitioner AMTS only on the ground that according to the Court's view the penalty imposed by the petitioner AMTS was excessive. 4. From the record of the case and on examination of the impugned award it has emerged that the award passed by the learned labour Court is classic example of misplaced sympathy. 4.1 The Court cannot be unjustly lenient and charitable at the cost of the discipline in the establishment, more particularly in cases of proved misconduct. 5. 4. From the record of the case and on examination of the impugned award it has emerged that the award passed by the learned labour Court is classic example of misplaced sympathy. 4.1 The Court cannot be unjustly lenient and charitable at the cost of the discipline in the establishment, more particularly in cases of proved misconduct. 5. The factual background which emerges from the record is thus: 5.1 The respondent raised industrial dispute against the order dated 17.4.1998 passed by the petitioner AMTS terminating the service of the respondent on the ground that he was in habit of remaining absent without leave and in the particular instance under reference he continuously remained absent without leave from 20.2.1997 until 17.5.1997 and thereafter even during the period when domestic inquiry was conducted he remained absent from duty as well as in the inquiry proceeding and that his default card reflected 179 misconducts which included misconduct of remaining absent without leave on 9 occasions. 5.2 The said dispute was referred for adjudication to learned labour Court at Ahmedabad. 5.3 The reference was registered as Reference (LCA) No. 947 of 1999. 5.4 In the statement of claim which the present respondent filed in the labour Court, he claimed that he was working as Driver with the Ahmedabad Municipal Transport Service. In the statement of claim the respondent - claimant admitted the fact that he remained absent without leave from 20.2.1997, however he claimed that he could not attend duty on account of ill-health. He alleged that he sought to submit his reply in response to the chargesheet however Inquiry Officer had not accepted the reply. The respondent workman further alleged that he had not received any registered post or any other intimation from the petitioner AMTS. He also alleged that his service came to be terminated without granting opportunity of hearing and without following procedure prescribed by law. 6. The reference was opposed by the petitioner AMTS by filing written statement. The petitioner AMTS denied the allegation raised by the respondent workman in his statement of claim. In its reply the petitioner AMTS asserted that the respondent workman, who was engaged as driver, was in habit of remaining absent without leave and in particular instance (on account of which his service came to be terminated) he remained absent without leave w.e.f. 20.2.1997. Therefore, the respondent workman was visited with chargesheet dated 23.5.1997. In its reply the petitioner AMTS asserted that the respondent workman, who was engaged as driver, was in habit of remaining absent without leave and in particular instance (on account of which his service came to be terminated) he remained absent without leave w.e.f. 20.2.1997. Therefore, the respondent workman was visited with chargesheet dated 23.5.1997. It was claimed that until the date when the chargesheet was issued the respondent had not reported for duty (after having abstained from duty for almost three months from 20.2.1997). The petitioner AMTS also claimed that the respondent workman did not submit any reply in response to the show-cause- notice and ultimately the inquiry officer was left with no alternative but to proceed with the domestic inquiry in absence of the respondent workman. The petitioner AMTS claimed that upon conclusion of the domestic inquiry, Inquiry Officer submitted his report dated 30.12.1997. According to AMTS the report Inquiry Officer recorded the conclusion that the charge and allegation against the respondent workman are proved. The petitioner has claimed that after considering the record of the domestic inquiry and the report of the Inquiry Officer the disciplinary authority passed order dated 17.4.1998 and terminated the service of the respondent workman by way of dismissal for the misconduct mentioned in the chargesheet. 7. The respondent workman challenged the said order before learned labour Court and on conclusion of the proceedings, learned labour Court passed award dated 17.12.2005 with above mentioned directions. 8. Learned advocate for the petitioner submitted that the respondent workman was in habit of remaining absent without leave and that past service record of the respondent workman reflected 9 instances of remaining absent without leave and other about 179 instances of misconduct. He also submitted that the respondent continuously remained absent from 20.2.1997 until the date when the chargesheet was issued i.e. for almost 3 months. He submitted that since any reply in response to the chargesheet was not filed domestic inquiry was conducted against the respondent. According to the learned advocate for the petitioner even during the period when the domestic inquiry was conducted the respondent remained absent and did not report for duty and he also did not appear before the Inquiry Officer and did not participate in the domestic inquiry. According to the learned advocate for the petitioner even during the period when the domestic inquiry was conducted the respondent remained absent and did not report for duty and he also did not appear before the Inquiry Officer and did not participate in the domestic inquiry. Therefore, the Inquiry Officer completed the domestic inquiry and on the basis of the record placed before the Inquiry Officer including the attendance register and chargesheet and other related material, he submitted the report dated 30.12.1997. According to the report the charge against the respondent workman is proved. The learned advocate for the petitioner AMTS submitted that having regard to the past service record and the gravity of the misconduct of the respondent workman, more particularly in view of the fact that the respondent was in habit of remaining absent without leave and the incident mentioned in the chargesheet was not first or solitary incident, the petitioner AMTS passed the penalty order and dismissed the respondent from service. The learned advocate for the petitioner submitted that even the learned labour Court has recorded in the award that the inquiry against the respondent workman was conducted in legal, fair and proper manner and that the misconduct against the respondent is proved. He also submitted that even learned labour Court has reached to the conclusion that the respondent workman had not submitted any application with regard to his absence and/or any medical certificate and that the learned labour Court also found that the charge and allegation against the respondent workman is proved. The learned advocate for the petitioner also submitted that though learned labour Court reached to such conclusion, the penalty order came to be set aside by the Court only on the ground that according to the Court penalty order was excessive. 9. The learned Counsel for the petitioner submitted that having regard to the fact that in October, 2002 i.e. during the proceedings pending before the learned labour Court the respondent crossed the age prescribed for superannuation he stood superannuated w.e.f. 31.10.2002 and that therefore the issue related to the claim for actual reinstatement did not survive. The learned advocate for the petitioner AMTS submitted that the impugned order is erroneous and without jurisdiction. 10. Mr. The learned advocate for the petitioner AMTS submitted that the impugned order is erroneous and without jurisdiction. 10. Mr. Rathod, learned advocate for the respondent workman submitted that the learned labour Court has exercised power available under Section 11-A of Industrial Disputes Act, 1947 in view of the fact that learned labour Court found that the penalty imposed by the petitioner AMTS is excessive. He also submitted that the discretion exercised by learned labour Court may not be interfered with. 11. I have considered the submissions by learned advocates for the petitioner and the respondent and also perused the material available on record. 11.1 As mentioned herein above earlier, the impugned award is case of misplaced and undue sympathy. This aspect is evident from the fact that in present case below mentioned facts are established: "(a) the respondent remained absent without leave from 20.2.1997; (b) until 17.5.1997 i.e. for almost 3 months the respondent remained absent from duty; (c) before 20.2.1997 (the date from the respondent remained absent) he had not made any application for leave and he had not sought permission to proceed on leave. (d) even during entire period of 3 months the respondent workman neither submitted any application nor and intimation. (d) even during entire period of 3 months the respondent workman neither submitted any application nor and intimation. (e) in this background the respondent was served with chargesheet dated 23.5.1997 for remaining absent without leave from 20.2.1997 and for being habitual absentism without leave; (f) even after the chargesheet the respondent did not report for duty; (g) the respondent did not submit any reply in response to the chargesheet and did not appear before the Inquiry Officer; (h) the Inquiry Officer adjourned the proceedings of domestic inquiry with the hope that the respondent would attend the proceedings and with a view to granting opportunity of hearing and defence to the respondent workman however, the respondent workman did not attend the proceedings; (i) the Inquiry Officer forwarded intimation by registered post about time and schedule for domestic inquiry and even after such intimation the respondent workman did not attend the proceedings of domestic inquiry and did not avail opportunity of hearing and defence; (j) ultimately the Inquiry Officer concluded the proceedings and submitted report dated 30.12.1997 on the basis of the documents and other material available on record; (k) the Inquiry Officer held that the charge and allegation against the respondent is proved; (l) the Disciplinary Authority took into account the report of the Inquiry Officer and the record of the domestic inquiry. The Inquiry Officer also took into account the default card which reflected 9 past instances wherein the respondent were remained absent without leave and other 170 instances of misconduct." 12. It is pertinent: "(a) it was after considering such facts as well as misconduct in question, that the disciplinary authority reached to the conclusion that it was not in the interest of AMTS to continue such habitual absentee in service therefore vide letter dated 17.4.1998 the petitioner AMTS dismissed the respondent. (b) in this backdrop learned labour Court examined the record of the domestic inquiry and upon careful examination even the learned labour Court reached to the finding that it was the respondent who did not avail opportunity of hearing before the Inquiry Officer and that the inquiry against the respondent was conducted in legal and fair manner. Besides this the respondent workman himself filed the purshis and declared that he does not challenge the legality and propriety of the inquiry. Besides this the respondent workman himself filed the purshis and declared that he does not challenge the legality and propriety of the inquiry. (c) the learned Court also considered the finding/report of the Inquiry Officer and reached to the conclusion that the findings of the Inquiry Officer are based on evidence and not arbitrary or unjust. (d) the learned Court also reached to the conclusion that the respondent had abstained from duty without any leave application or without seeking permission from the competent authority. (e) it is pertinent that even the learned labour Court also did not believe the respondent's contention that he did not attend the duty because of ill-health. (f) the learned labour Court also noticed that the respondent himself had admitted that he had not reported for duty from 20.2.1997." 13. Despite having found and held and even after having recorded that (i) the Court found that the domestic inquiry is legal and proper; (ii) the charge levelled against the respondent is proved; and that (iii) the respondent was granted opportunity of hearing and defence and there was no violation of principles of natural justice; (iv) the finding recorded by Inquiry Officer are neither incorrect nor arbitrary but are based on evidence available on record of the inquiry; (v) the Inquiry Officer is justified in holding that the charge and allegation against the respondent is proved, learned labour Court entered into realm of quantum of penalty and examined as to whether the penalty imposed by the petitioner AMTS is just and proper or not. Thus, the learned labour Court not only entered into the realm of examining quantum of penalty but the Court also recorded its own view that the penalty was excessive and the Court then went even one more step forward and even substituted the penalty. 14. Thus, the learned labour Court not only entered into the realm of examining quantum of penalty but the Court also recorded its own view that the penalty was excessive and the Court then went even one more step forward and even substituted the penalty. 14. While examining the quantum of penalty and while recording its own view and substituting its own view in place of the employer's decision, the learned labour Court lost sight of the legal position that when it is established that the domestic inquiry conducted against the delinquent workman is legal and proper and there is no violation of principles of natural justice and that the charge and allegation levelled against the delinquent workman is duly proved and established then it would not be proper and permissible for the Court to interfere with the quantum of penalty unless the learned labour Court, on the basis of evidence available on record, reaches to legally sustainable conclusion that the penalty imposed by the employer is so excessive that it smacks of victimization and it is such which any reasonable and prudent person would not have imposed. 15. In case of proved misconduct, the learned labour Court would not be justified in weighing the quantum of penalty in golden scale and/or in substituting its own view with regard to quantum of penalty for that of the employer's and thereby modifying/substituting the quantum of penalty determined by the employer. 16. In this view of the matter, the decision of the learned labour Court to interfere with the quantum of penalty determined by the petitioner AMTS in respect of present respondent is arbitrary exercise of jurisdiction. 17. Besides above mentioned aspects in present case, it is relevant to mention that the learned labour Court lost sight of vital fact in present case viz. the respondent's default card which contains his past service record and reflected as many as 179 defaults/misconduct including 9 past instances of similar nature when the respondent remained absent without leave. The learned Labour Court also lost sight of the fact that it is within the realm of discretion of the management/employer to ensure the discipline amongst the workman. the respondent's default card which contains his past service record and reflected as many as 179 defaults/misconduct including 9 past instances of similar nature when the respondent remained absent without leave. The learned Labour Court also lost sight of the fact that it is within the realm of discretion of the management/employer to ensure the discipline amongst the workman. The learned Labour Court also lost sight of the fact that lenient view with regard to misconduct by the employee can adversely affect the discipline of entire organization and the Court should not show undue sympathy or be lenient at the cost of discipline. 18. Unfortunately the learned labour Court ignored the said undisputed facts while interfering with the quantum of penalty determined by the employer. 19. When the respondent's past service record is taken into account and when particular instance for which the chargesheet was issued i.e. action of the respondent of remaining absent without leave for continuously for 3 months is taken into account it emerges that the decision of the employer with regard to the quantum of punishment by any yardstick, could not have been branded harsh or excessive. 20. In this background the view of the learned labour Court that the quantum of penalty determined by the petitioner in case of present respondent is harsh and/or the decision by the Court to interfere with the quantum of penalty and the order modifying and reducing the substituting the penalty are not sustainable. 21. The learned labour Court is not justified or correct in interfering with the penalty order passed by the competent authority of the petitioner AMTS. The learned labour Court has exercised jurisdiction arbitrarily and without having regard to the facts of the case and past service record of the respondent the learned Court has transgressed the jurisdiction and substituted its own view point for that of the employer. 22. The impugned order interfering with quantum of penalty decided by employer in case of proved misconduct cannot be sustained. The order deserves to be set aside and is accordingly set aside. Consequently, the petition is allowed. 23. Before concluding it will not be out of place to mention that in present case learned labour Court not only committed error in interfering with the order of penalty passed by the employer but the learned labour Court committed further error in present case by imposing cost of Rs. Consequently, the petition is allowed. 23. Before concluding it will not be out of place to mention that in present case learned labour Court not only committed error in interfering with the order of penalty passed by the employer but the learned labour Court committed further error in present case by imposing cost of Rs. 2,000/- on the petitioner AMTS. 24. In case where even the learned Court found that the inquiry was conducted in legal and fair manner and there was no defect in the inquiry and there was no violation of principles of natural justice and when the learned labour Court found that the findings of the Inquiry Officer are also correct and supported by evidence, there was no justification for imposing cost of Rs. 2,000/-. 25. It is expected and hoped that the learned labour Court would exercise proper discretion while taking decision with regard to cost. The said decision is also set aside. In the result petition is allowed. Rule is made absolute to the aforesaid extent.