JUDGMENT : K.M. Thaker, J. 1. Heard Ms. Dimple A. Thaker, learned advocate for Mr. Rituraj Meena, learned advocate for petitioner Corporation. 2. Though served, no one has entered appearance for respondent. The respondent himself is also not present to attend/conduct final hearing of the petition. 3. In present petition, the Gujarat State Road Transport Corporation has challenged the award dated 24.03.2006 passed by learned Labour Court, Surat in Reference (LCS) No. 76 of 2003 whereby learned Labour Court partly allowed the Reference and directed the petitioner Corporation to reinstate the claimant in service with continuity of service, however, without backwages. Learned Labour Court also directed that the 2 increments shall be stopped with permanent effect. The petitioner Corporation felt aggrieved by the said order and filed present petition. 4. So far as the factual background is concerned, it has emerged from the record and submission by learned advocate for the petitioner that the respondent herein raised industrial dispute with the allegation that the Corporation illegally and arbitrarily terminated his service on the allegation that he remained absent from service for 80 days. He submitted that before terminating his service, the Corporation did not follow procedure prescribed by law and the Corporation violated principle of natural justice. With such allegations, the claimant demanded that the should be reinstated in service with all benefits. In his statement of claim before learned Labour Court, the claimant alleged that he worked with the opponent Corporation as Conductor for 18 years and the Corporation arbitrarily terminated his service without taking into account his explanation and/or reasons and circumstances on account of which he could not attend his duties. The claimant demanded that Corporation arbitrarily terminated service of the claimant and violated principle of natural justice and he should be reinstated in service with all benefits. 5. The opponent Corporation opposed the Reference and demand by the claimant. In its reply, the Corporation contended that the claimant stopped reporting for duty and he abstained from work without prior intimation or without prior sanction which caused several problems. The Corporation also contended that the claimant continued to remain absent from duty for long period and during entire period he did not inform reason for his absence and he did not seek leave and, thereby he committed serious misconduct. The Corporation also contended that the claimant continued to remain absent from duty for long period and during entire period he did not inform reason for his absence and he did not seek leave and, thereby he committed serious misconduct. The Corporation contended that in this background the charge sheet dated 14.08.2001 was issued and departmental inquiry was conducted. The Corporation contended that sufficient opportunity of hearing and defence was granted to the claimant and upon conclusion of domestic inquiry, the inquiry officer submitted his report/findings wherein he held that the allegations and charge against the claimant are proved. The Corporation also contended that thereafter the procedure in accordance with Rule was followed whereunder 2nd notice was issued and report of the Inquiry Officer was provided to the claimant and after taking into account past service record, gravity of misconduct and other relevant factor, the disciplinary authority passed order dated 23.11.2001 whereby the claimant came to be dismissed from service. The Corporation contended that since the service of the claimant came to be terminated on account of proved misconduct and after granting sufficient opportunity of hearing and defence to the claimant, the decision of the Corporation may not be disturbed and the Reference may be rejected. 6. After the parties completed their pleadings, learned Labour Court received documentary and oral evidence from both sides. The claimant did not place any documentary evidence on record and when the parties concluded their evidence, learned Labour Court heard rival submission of the contesting parties and after considering the material available on record, the learned Labour Court passed impugned award with above mentioned direction. 7. Learned Labour Court for the petitioner Corporation assailed impugned award and submitted that learned Labor Court failed to appreciate that the charge and allegation against the claimant are proved. According to learned advocate for the petitioner Corporation, learned Labour Court failed to appreciate that the claimant committed serious misconduct of remaining absent without intimation and without permission and that the claimant was in habit of remaining absent without leave and that, therefore, the final decision of the Corporation is just and should not have been interfered with. According to learned advocate for the petitioner Corporation, learned Labour Court failed to appreciate that the claimant committed serious misconduct of remaining absent without intimation and without permission and that the claimant was in habit of remaining absent without leave and that, therefore, the final decision of the Corporation is just and should not have been interfered with. Learned advocate for the Corporation submitted that the claimant was granted sufficient opportunity of hearing and defence and on the basis of the Report of the Inquiry Officer holding, inter alia, that the allegations against the claimant are proved, the decision was taken by the competent authority after considering the gravity of misconduct and past record and, therefore, learned Labour Court should not have interfered with the penalty determined and imposed by competent authority. 7.1 Learned advocate for the Corporation submitted that the award suffers from error of irregular exercise of jurisdiction by learned Labour Court and, therefore, the award deserves to be set aside. With said submission, learned Labour Court for the Corporation also submitted that the respondent i.e. original claimant attained age of superannuation on 30.06.2013 and that, therefore, now the question of actual reinstatement in service does not survive. He also submitted that in the interregnum i.e. during the period from the date of award until the date on which the claimant attained the age of superannuation, the implementation and operation of the award was stayed by way of interim relief granted by this Court. 7.2 The learned advocate for the Corporation also clarified that when the claimant attained age of superannuation he was treated as retired from service on superannuation and the Corporation also paid all retiral benefits i.e. gratuity, Provident Fund etc. 8. I have considered the submissions, the material on record and the award. 9. It has emerged from the record, more particularly from the award that during the proceeding before learned Labour Court, the claimant declared that he does not challenge the legality and propriety of the inquiry. The claimant admitted that the inquiry was conducted in legal and fair manner. The claimant, however, challenged the findings recorded by the inquiry office and quantum of penalty. 10. The claimant admitted that the inquiry was conducted in legal and fair manner. The claimant, however, challenged the findings recorded by the inquiry office and quantum of penalty. 10. So far as the findings of inquiry officer are concerned, from the findings recorded by the learned Labour Court, it has emerged that learned Labour Court also reached to the conclusion that the allegations and charge against the claimant are proved. 10.1 In Para-7 of the award the learned Labour Court has observed that the claimant admitted the legality and propriety of the inquiry. 10.2 Learned Labour Court has also recorded that the claimant himself declared that he drops the demand for backwages. 10.3 Learned Labour Court has also recorded in Para-7 of the award that on examination of the charge sheet, findings of the inquiry officer and material available on record, it has emerged that the allegations against the claimant are proved. 10.4 In Para-8 of the award, learned Labour Court has taken into consideration past defaults by the claimant. 10.5 Learned Labour Court has recorded that about 58 defaults are registered against the claimant in the default card and that most of the defaults out of all the said 58 defaults are about the misconduct of not issuing tickets as well as absenteeism. 11. After recording the said observations and findings, learned Labour Court observed that the penalty of termination of service for misconduct of remaining absent is harsh and deserves to be interfered with in exercise of power under Section 11A of the Act. 11.1 Having reached to the said conclusion, learned Labour Court exercised power under Section 11A and while setting aside the penalty of termination from service, learned Labour Court substituted/reduced the penalty with penalty of stoppage of 2 increments with permanent effect. 12. At this stage, it is relevant to take into account the information given and clarification made by learned advocate for claimant. As mentioned above, learned advocate for claimant has clarified that the claimant attained age of superannuation on 30.03.2013 and thereafter the Corporation has paid Rs. 50,043/- towards gratuity on 17.08.2013 and the claimant has also received Rs. 71,698/- towards Provident Fund on 18.11.2013. 13. As mentioned above, learned advocate for claimant has clarified that the claimant attained age of superannuation on 30.03.2013 and thereafter the Corporation has paid Rs. 50,043/- towards gratuity on 17.08.2013 and the claimant has also received Rs. 71,698/- towards Provident Fund on 18.11.2013. 13. The learned advocate for the petitioner has placed reliance upon the decision passed by this Court in case of Ahmedabad Municipal Transport Service v. Shivkumar Mulchand Rohida passed in Special Civil Application No. 20376 of 2006, wherein Para-12 to 15 reads as under: "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. (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. (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. 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. 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." 14. Having regard to the fact that "(a) The claimant admitted legality of inquiry. (b) Thus, there is no dispute that legal and fair inquiry was conducted. (c) The learned Labour Court found that the findings recorded by the inquiry officer are fair and not perverse. (d) Even learned Labour Court held that the allegations about continuous unauthorised absence-without leave and without sanction-for long period are proved. (e) The workman's service was, thus, terminated for proved misconduct. (f) In this background, the Court substituted its own views with regard to penalty. (g) In this background, the Court unreasonably exercised power under Section 11-A of the Act. The exercise of said power is unjust and arbitrary exercise and misplaced sympathy; and (h) the claimant has attained age of superannuation and the Corporation has already paid retiral benefits." 15. At this stage, this Court is not inclined to interfere with award passed by the learned Labour Court. 16. Therefore, in light of foregoing discussion and for above mentioned reasons, the petition is not maintained. 17. It is further clarified that the Court has not interfered with and has not disturbed the impugned award in light of the peculiar facts of the present case namely the claimant has already attained the age of superannuation and retiral dues have been paid to the claimant. With aforesaid clarification, the petition stands disposed of. Rule is discharged. Disposed off.