JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Joshi, learned advocate for the petitioner and Mr. Rathod, learned advocate for the respondent workman. 2. Rule. Mr. Rathod, learned advocate for the respondent workman has waived service of Rule and with consent of learned advocate for the respondent workman, the petition is taken up and heard for final hearing and final order. 3. In this petition, the petitioner - Gujarat State Road Transport Corporation has brought under challenge an award dated 31.7.2013 passed by the learned Labour Court, Nadiad in Reference (LCN) No. 61 of 2012 whereby the learned Labour Court set aside the petitioner's order terminating the service of the respondent workman and the learned Labour Court has directed the petitioner to reinstate the respondent workman without backwages. 4. From the material available on record and the facts and evidence discussed in the award and the reasons and conclusions recorded by the learned Labour Court in the impugned award, it has emerged that the respondent workman, prior to his termination from service, worked as a Conductor with the petitioner corporation. The respondent workman was visited with charge-sheet on the ground that the respondent workman continuously remained absent without leave from 24.8.2010 to 25.11.2010 and also on the ground that he was in habit of remaining absent without prior permission. Since the respondent's explanation in response to the charge-sheet was not found satisfactory, departmental enquiry was conducted. Upon conclusion of the domestic enquiry, the Enquiry Officer submitted his report holding that charge and allegation levelled against the respondent workman are proved. The Disciplinary Authority considered the report of the Enquiry Officer and the material available on record of the enquiry and relevant factors and reached the conclusion that it would not be in the interest of the corporation to continue him in service. Therefore, the respondent workman came to be removed from service. The respondent workman raised industrial dispute which was referred for adjudication being Reference (LCN) No. 61 of 2012 before the learned Labour Court, Nadiad. The respondent workman alleged that his service is terminated illegally and arbitrarily. He also claimed that order of penalty is harsh. 5. The petitioner corporation opposed the reference. The respondent workman raised industrial dispute which was referred for adjudication being Reference (LCN) No. 61 of 2012 before the learned Labour Court, Nadiad. The respondent workman alleged that his service is terminated illegally and arbitrarily. He also claimed that order of penalty is harsh. 5. The petitioner corporation opposed the reference. In its written statement filed before the learned Labour Court, the petitioner placed on record relevant facts including the fact that on previous occasion also, the service of the respondent was terminated in 2003 on account of similar charge and allegation on ground of habitual absenteeism. However, the departmental appellate authority had set aside the order of disciplinary authority and the departmental appellate authority had directed the petitioner to reinstate the respondent without continuity of service and at the initial/lowest stage of the pay scale. The petitioner corporation also claimed before the learned Labour Court that despite the said order and lenient view taken by the authority, the respondent continuously remained absent without leave. 6. The petitioner also claimed before the learned Labour Court that when the respondent workman started remaining absent with effect from 24.8.2010, the petitioner corporation had forwarded intimation by Registered Post asking the respondent to resume duties, however, the respondent continuously remained absent and therefore, the respondent was visited with the charge-sheet, pursuant to which departmental enquiry was conducted. 7. The learned Labour Court considered the material on record and rival submissions by the contesting parties. 8. The learned Labour Court interfered with the order of penalty only on the ground that since the enquiry was conducted ex parte the respondent could not offer any explanation with regard to his absence from service after 24.8.2010. On the said ground the learned Labour Court set aside the order of penalty and passed the award which is impugned in present petition. 9. Mr. Joshi, learned advocate for the petitioner assailed the award and submitted that the ground on which the learned Labour Court interfered with the order of penalty passed by the petitioner is non-germane and unsustainable in law. He submitted that the learned Labour Court has exercised jurisdiction arbitrarily and irregularly. According to learned advocate for the petitioner, the impugned award suffers from error of arbitrary exercise of jurisdiction. 10. He submitted that the learned Labour Court has exercised jurisdiction arbitrarily and irregularly. According to learned advocate for the petitioner, the impugned award suffers from error of arbitrary exercise of jurisdiction. 10. Learned advocate for the workman submitted that since the learned Labour Court considered the order of penalty and found that the penalty imposed by the petitioner was harsh and therefore, the learned Labour Court modified the order of penalty. He further submitted that the learned Labour Court exercised the power conferred under Section 11A of the Act and that, therefore, there is no illegality in the order. He submitted that the petition may not be entertained. 11. Learned advocate for the respondent, however, could not dispute the fact regarding the respondent's past record or the fact that the respondent is in habit of frequently remaining absent without leave. 12. Learned advocate for the respondent could also not dispute the fact that reasonable and fair opportunity of hearing and defence was granted to the respondent. However, the respondent did not care to remain present during the inquiry proceeding. 13. Learned advocate for the respondent also could not dispute the fact that even the learned Labour Court found that the inquiry was not defective in any manner and the allegation against the workman are proved. 14. It is not in dispute that the petitioner remained absent from the service from 24.8.2010 to 25.11.2010 and therefore, a charge-sheet was issued. 15. It is also not in dispute that during the departmental enquiry also, the respondent did not remain present before the Enquiry Officer. 16. Consequently, the Enquiry Officer was compelled, after having adjourned the proceeding of the enquiry with a view to granting opportunity to the respondent, to conduct and complete the enquiry in absence of the respondent. 17. Having regard to the fact that the respondent did not report for duty after 24.8.2010 and also did not remain present during the enquiry and remained continuously absent from duty on and from 24.8.2010 without permission or without any intimation, the disciplinary authority terminated the respondent's service by way of order of penalty vide order dated 8.4.2011. 18. From the record it has emerged that the petitioner also established before the learned Labour Court that the respondent remained absent from duty without prior permission or any intimation continuously for 7 months, i.e. from 24.8.2010 to 8.4.2011. 19. 18. From the record it has emerged that the petitioner also established before the learned Labour Court that the respondent remained absent from duty without prior permission or any intimation continuously for 7 months, i.e. from 24.8.2010 to 8.4.2011. 19. Even the learned Labour Court has accepted the said factual aspect and recorded finding of fact that the respondent remained absent continuously for 7 months. 20. The learned Labour Court has also observed that such prolonged absence from service by a person on the post of Conductor would cause serious administrative difficulty for the corporation. 21. It was also established before the learned Labour Court that on previous occasion (i.e. in 2003) also the service of the respondent was terminated on similar ground, i.e. on ground of habitual absenteeism and despite the said order the respondent did not show any improvement in his conduct after he was reinstated pursuant to the departmental appellate authority's order. 22. In view of the fact that a legal and proper departmental enquiry was conducted and sufficient opportunity of hearing and defence was granted and in view of the fact that the respondent's past service record is tainted with the similar misconduct and in view of the fact that the departmental enquiry was conducted in fair manner and the penalty order was passed after following and complying principles of natural justice, there was no ground or justification to interfere with the penalty order passed by the learned Labour Court. 23. Any ground or justification for interfering with the order of penalty is not recorded by the learned Labour Court except the ground that the respondent did not get opportunity of explaining cause of his absence. 24. The learned Labour Court failed to appreciate that the respondent was granted sufficient, fair and reasonable opportunity to explain his conduct and defend his case, however, he did not avail the opportunity, rather he waived the opportunity. The learned Court failed to appreciate that when a person is granted opportunity to appear before the Enquiry Officer and defend his case but if he does not avail the opportunity and he willingly and/or consciously waives or wastes the opportunity then he cannot raise objection against the enquiry on ground of denial of opportunity of hearing. 25. The learned Court failed to appreciate that when a person is granted opportunity to appear before the Enquiry Officer and defend his case but if he does not avail the opportunity and he willingly and/or consciously waives or wastes the opportunity then he cannot raise objection against the enquiry on ground of denial of opportunity of hearing. 25. Under the circumstances, the order of penalty could not have been and ought not have been interfered with on the ground that the respondent did not grant any opportunity to explain cause for his absence. 26. From the foregoing discussion, it emerges that the impugned award is misconceived and it is based on misplaced sympathy and it is not sustainable. 27. The learned Labour Court has exercised discretion as well as jurisdiction arbitrarily. 28. Besides this, it is also relevant to note that the respondent workman will attain age of superannuation in May 2016. In this view of the matter also the direction to reinstate the respondent is not justified and is not sustainable. 29. Mr. Rathod, learned advocate for the respondent workman submitted that if the petitioner corporation has not paid the amounts payable to the respondent workman at the time of removal from service pursuant to the penalty order dated 8.4.2011, then the amount payable in accordance with the rules of the corporation may be paid expeditiously. 30. In view of the said request it is clarified that if any amount payable according to the applicable rules is still not paid, then the petitioner corporation may take necessary steps in that regard expeditiously. With the aforesaid clarifications and observations, the petition is allowed. The impugned award dated 31.7.2013 passed by the learned Labour Court, Nadiad in Reference (LCN) No. 61 of 2012 is set aside. Rule is made absolute to the aforesaid extent.