JUDGMENT : K.M. Thaker, J. Heard Mr. Vyas, learned advocate for the petitioner and Mr. Pandya, learned advocate for respondent no.1 (caveator). 2. Rule returnable forthwith. Mr. Pandya, learned advocate for respondent has waived service of Rule and with his consent the petition is heard for final order today. 3. The petitioner is aggrieved by award dated 27.1.2016 passed by learned Labour Court at Ahmedabad in Reference (LCA) No.938 of 2007 whereby the learned Labour Court held that :- (a) the charge and allegations about misconduct (unauthorised absence of 66 days and habitual absentism) are proved against the workman (b) there is no doubt about the fact that the proved misconduct is serious misconduct (c) However, even after recording such findings and conclusion learned Labour Court compared the gravity of proved misconduct (unauthorised absence of 66 days and habitual absentism) with the misconduct in nature of theft of company's property or misappropriation of company's money and on such comparison the learned Labour Court held that the proved misconduct, though of serious nature, cannot be said to be as grave as theft or misappropriation and therefore penalty of dismissal from service is harsh. (d) Having reached to such conclusion learned Labour Court passed impugned award with direction that the claimant should be deemed to be in service until the date on which he attained age of superannuation and he should get 30% backwages for the said period. (e) Learned Labour Court went a step further and also directed that the period from the date of termination upto the date when the workman attained the age of superannuation, should be considered continuous i.e. learned Labour Court also granted benefit of continuity of service. 4. Undisputedly, workman had not worked during the period from date of termination until the date of award however, learned Labour Court awarded 30% backwages as well as all retiral benefits. Thus, though prima-facie from the order of the Court it would appear 70% backwages are denied to the workman, actually the workman, though held guilty for proved misconduct, has virtually escaped scot-free because he is considered eligible for continuity of service as well as 30% backwages and all retiral benefits. 4.1 The legality and propriety of said award and the said direction are under challenge in present petition. 5. 4.1 The legality and propriety of said award and the said direction are under challenge in present petition. 5. So far as the factual background is concerned, it has emerged from the record that (a) the respondent herein was, prior to the penalty order whereby the service of the workman came to be terminated, was employee of present petition; (b) he was serving as conductor; (c) he, allegedly, remained absent from duty for 66 days during the period from July, 2002 to December, 2002; (d) for the said misconduct and habitual absentism the authority decided to initiate disciplinary action against the workman; (e) therefore the disciplinary authority issued chargesheet dated 17.2.2003; (f) in pursuance of the said charge domestic inquiry was conducted; (g) upon conclusion of the domestic inquiry, the Inquiry Officer submitted his finding and report wherein the Inquiry Officer held that the charge and allegations (misconduct) are proved; (h) the disciplinary authority considered the said findings and report of the Inquiry Officer; (i) the disciplinary authority also considered that the chargesheet specifically mentioned about 70 previous instances of misconduct by the workman which included 2 instances of similar nature i.e. absentism, 5 instances of theft, 6 instances of behaviour unbecoming of an employee, 6 instances of not depositing the fare within time and 51 other (miscellaneous) instances (i.e. total 70 instances). The chargesheet also mentioned certain instances (4 instances) which pertain to period prior to March, 1979. 5.1 Having regard to the above service record of the workman and the material which obtained on record of the inquiry and the findings of the Inquiry Officer, the competent authority considered it appropriate to terminate service of the claimant. 5.2 Therefore, order dated 22.12.2003 dismissing the petitioner came to be passed. 5.3 Since at the relevant time certain disputes were pending and present respondent was concerned workman in the said dispute, present petitioner filed approval application under Section 33 of the Industrial Act. 5.4 Learned Labour Court granted approval application vide order dated 1.8.2005. 5.5 Subsequently in 2012 the workman filed an application seeking review of the order. The said review application came to be rejected vide order dated 7.4.2012. 5.6 After conclusion of these proceedings the claimant raised industrial dispute against the order of penalty (order dated 23.12.2003) in 2007. 5.4 Learned Labour Court granted approval application vide order dated 1.8.2005. 5.5 Subsequently in 2012 the workman filed an application seeking review of the order. The said review application came to be rejected vide order dated 7.4.2012. 5.6 After conclusion of these proceedings the claimant raised industrial dispute against the order of penalty (order dated 23.12.2003) in 2007. 5.7 Appropriate government referred the said dispute for adjudication to learned Labour Court and the learned Labour Court registered the said dispute as Reference (LCA) No.938/2007. 5.8 It is pertinent to note that after having initiated the said proceedings, the claimant, for long time, did not attend the proceedings and therefore the learned Labour Court was compelled to dismiss the reference on the ground of non-prosecution. 5.9 The claimant, thereafter, preferred an application no.66/2010 and prayed for restoration of proceedings. The application came to be allowed vide order dated 23.7.2013. 5.10 Thereafter, proceedings of reference case No.938 of 2007 progressed. The learned Labour Court received evidence from both sides and heard rival submissions. Thereafter, learned Labour Court considered the material available on record, and reached to above mentioned findings i.e.- (a) the charge and allegations about misconduct are proved against the workman; (b) undisputedly the proved misconduct is serious misconduct; (c) Even after recording such findings and conclusion learned Labour Court compared the gravity of proved misconduct with the misconduct in nature of theft of company's property or misappropriation of company's money and on such comparison the learned Labour Court held that the proved misconduct, though of serious nature, cannot be said to be as grave as theft or misappropriation and therefore the penalty of dismissal from service is harsh. 6. Having reached to such conclusion learned Labour Court passed impugned award with direction that the claimant should be deemed to be in service until the date on which he attained age of superannuation and 30% backwages for the said period may be granted. Thus, the learned Labour Court also granted benefit of continuity of service. 7. In this backdrop, learned advocate for the petitioner submitted that the award is arbitrary and learned Labour Court has committed error and arbitrarily invoked and exercised power under Section 11A. The said discretionary power is exercised arbitrarily. Thus, the learned Labour Court also granted benefit of continuity of service. 7. In this backdrop, learned advocate for the petitioner submitted that the award is arbitrary and learned Labour Court has committed error and arbitrarily invoked and exercised power under Section 11A. The said discretionary power is exercised arbitrarily. The Learned advocate further submitted that the learned Labour Court found that the misconduct is proved and the misconduct is of serious nature however, the learned Labour Court committed error in holding that the penalty determined by the employer is of grave nature. Learned advocate for petitioner submitted that there is no justification in the order directing the petitioner to consider the workman in service on the date of termination until the date when he attained age of superannuation and to also treat the said intervening period as continuous service and to pay 30% backwages for the said period. Learned advocate for the petitioner submitted that the workman is in habit of committing misconduct and was always involved in such act which tentamount to misconduct. His past service record was also not clean however the learned Labour Court failed to consider the said relevant aspects and on basis of unjustified comparison the learned Labour Court interfered with the quantum of penalty determined by the employer. Therefore the order deserves to be set aside. 8. Mr. Pandya, learned advocate vehemently opposed the submission and the petition. He submitted that the petitioner's emphasise on past instances is unjustified inasmuch as the penalty imposed against the workman for the said alleged instances of misconduct have been set aside/withdrawn and that therefore the said instances cannot and should not be taken into account. Mr. Pandya further submitted that before his service came to be terminated the claimant had rendered service for 25 years and because of the order of penalty entire service of 25 years will be wiped out and that there the order passed by learned Labour Court cannot be said to be unjust or arbitrary. Mr. Pandya, learned advocate submitted that mere absence for 66 days over a period of 6 months cannot be visited with the penalty of dismissal from service and that therefore impugned award should not be disturbed. 9. I have considered material available on record, including the charge and the impugned award. 10. Mr. Pandya, learned advocate submitted that mere absence for 66 days over a period of 6 months cannot be visited with the penalty of dismissal from service and that therefore impugned award should not be disturbed. 9. I have considered material available on record, including the charge and the impugned award. 10. At the outset, it is necessary and appropriate to note that absence of an employee in category of conductor in City Transport Service is undoubtedly and undisputedly a misconduct and that too a misconduct of serious nature which, creates serious administrative difficulties for the employer. Further prolonged or repetitive and frequent unauthorised absence becomes more acute and serious problem. 11. In present case past service recorded of the claimant not only speaks about 51 miscellaneous or other instances but it also makes reference of 5 instances wherein the petitioner was involved in theft and 6 instances of conduct unbecoming of an employee. 12. There was nothing on record of the learned Labour Court and any material is not shown to this Court on record of present petition which would demonstrate that even the said 5 instances of theft and/or 6 instances of conduct unbecoming of an employee have also been condoned (or penalty in respect of those instances are set aside) by the employer and that therefore those instances should not be taken into account. 13. Besides this, the explanation given by the employee for not reporting for duty for almost 66 days over a period of 6 months, was apparently incorrect and unjustified. 14. In view of the specific observation and findings recorded by learned Labour Court, which are accepted by the workman (since the award and the findings and conclusions as well as reasons to support the findings which are recorded in the order, are not challenged by the employee and entire award is accepted by the employee), there is no need to enter into further deliberation about the misconduct of the workman and/or the gravity of misconduct and such related issues. 15. It is pertinent to note that learned Labour Court itself has, on evidence available on record before it, reached to findings of fact and has recorded the finding that the charge and allegation about misconduct are proved and that the proved misconduct is of serious nature. 16. 15. It is pertinent to note that learned Labour Court itself has, on evidence available on record before it, reached to findings of fact and has recorded the finding that the charge and allegation about misconduct are proved and that the proved misconduct is of serious nature. 16. In this backdrop, it was not permissible for the learned Labour Court to compare the seriousness and gravity of proceed misconduct (namely absence from duty for 66 days), with misconduct in nature of theft or misappropriation. 17. True it is that when quantum of penalty is determined in respect of misconduct of absence from duty, the factors such as length of absence and reasons for absence should be taken into account. However, in present case it has emerged that the competent authority of the petitioner did take into account the said and other factors. Further, after considering the said aspect even learned Labour Court reached to the conclusion that the proved misconduct is of serious nature. 18. Undisputedly, the span of absence is from July, 2002 to December, 2002. Despite this fact the claimant tried to take shelter under alleged disturbed situation on account of riots. The period of disturbed situation on account of riot was around February, 2002/March, 2002 and it did not continue/ extend till July, 2002 to December, 2002. 19. Undisputedly, the excuse given by the claimant was not sustainable or palatable, much less correct. The workman, therefore, failed to offer any explanation with regard to his absence and failed to satisfy the authority as well as the Court with regard to reason for absence. 20. Under the circumstances, the submission by learned advocate for workman with regard to proved misconduct and undisputed fact cannot be sustained. 21. The Labour Court has not committed any error in not accepting such explanation and/or in its conclusion that the misconduct is proved and that said proved misconduct is of serious nature. 22. The legality and propriety or the order passed by learned Labour Court and the petitioner's challenge against the award have to be examined on the basis of observation in the award and reasons recorded by the learned Labour Court. 23. 22. The legality and propriety or the order passed by learned Labour Court and the petitioner's challenge against the award have to be examined on the basis of observation in the award and reasons recorded by the learned Labour Court. 23. In present case, it is pertinent to note that (a) legality and propriety of domestic inquiry was not in challenge; (b) the workman admitted legality and propriety of the inquiry; (c) thus the scope of further inquiry and investigation by learned Labour Court with regard to order of penalty would be extremely limited and restricted and it would not be open for the Labour Court or Tribunal to act as Appellate Court over Management's decision unless malafides or victimisation is established and/or over the findings by inquiry officer. 24. In this context, profitable reference can be had to the recent decision by Hon'ble Apex Court in case of General Secretary, South Indian Cashew Factories Workers Union vs. Managing Director, Kerala State Cashew Development Corporation Ltd., (2006) 5 SCC 201 , where Hon'ble Apex Court observed that: "16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11A of the Act gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the Section itself. Before the introduction of Section 11A in Indian Iron and Steel Co. Ltd. v. Their Workmen, (1958) SCR 667 this Court held that the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice, victimisation etc. in this case. on the part of the management. There is no allegation of unfair labour practice, victimisation etc. in this case. The powers of the Labour Court in the absence of Section 11A is illustrated by this Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management, (1973) 1 SCC 813 . When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimisation or malafides or unfair labour practice, Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11A is not applicable, Labour Court has no power to reappraise the evidence to find out whether the findings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry." 25. The reasons recorded by learned Labour Court have to be considered in light of the said observation by Hon'ble Apex Court. As mentioned above, after examining material available on record and on appreciation of entire evidence and submission by the workman, learned Labour Court held that the misconduct is proved. The Labour Court also found and held that the findings of the Inquiry Officer are not incorrect or perverse and also that misconduct is of serious nature. 26. When above mentioned aspects are proved and established before learned Labour Court and they are accepted and approved by the learned Labour Court then there would, ordinarily, no reason for invoking discretionary power under Section 11A and the scope of invoking discretionary power under Section 11A would be very limited. Such occasion would arise only when Court, on objective consideration and for recorded reasons and after judicious satisfaction holds that the penalty determined by the employer is shockingly disproportionate and excessive as well so harsh that no employer would impose, except out of malafides and/or for victimisation. Such occasion would arise only when Court, on objective consideration and for recorded reasons and after judicious satisfaction holds that the penalty determined by the employer is shockingly disproportionate and excessive as well so harsh that no employer would impose, except out of malafides and/or for victimisation. Merely because the learned Labour Court considers that quantum of penalty determined by the employer is harsh, the power ought not invoked and exercised and such subjective opinion of learned Court is not sufficient reason or justification to exercise discretionary power under Section 11A, more particularly when there is no plea, much less proof, about vicitimisation. 27. When the learned Labour Court is satisfied that before imposing the penalty legal and fair inquiry was conducted and there is complete absence of victimisation and the finding of the Inquiry Officer are also just and proper and that the charge and allegations about the misconduct are proved and such satisfaction is coupled with the learned Labour Court's satisfaction that misconduct is of serious nature, there would be, virtually and literally, no scope for exercising power under Section 11A. 28. In present case, even otherwise, the learned Labour Court has not recorded any justification to invoke and exercise power under Section 11A except that the misconduct cannot be considered as grave as misconduct as theft or misappropriation. 29. The said reason or justification to invoke and exercise power under Section 11A, is neither satisfactory nor justified. 30. It is necessary to keep in focus that Hon'ble Apex Court has observed that proved misconduct is an antithesis of victimisation and quantum of penalty determined by the employer cannot be weighed by the learned Labour Court in golden case. 31. Merely because the Court is of the opinion that some other penalty whould have been appropriate, it would not be open for the Court to interfere with the employer's decision with regard to quantum of penalty. The said subject falls squarely within realm of employer's discretion, unless victimisation is proved. 32. For all these reasons, the decision of learned Labour Court to invoke and exercise power under Section 11A is unjustified and cannot be sustained. 33. There is another reason and perspective involved in present case. When factual aspects are examined it comes out that the service of the workman came to be terminated vide order dated 23.12.2003. 34. 32. For all these reasons, the decision of learned Labour Court to invoke and exercise power under Section 11A is unjustified and cannot be sustained. 33. There is another reason and perspective involved in present case. When factual aspects are examined it comes out that the service of the workman came to be terminated vide order dated 23.12.2003. 34. For almost 4 years the workman did not raise any dispute. 35. It was only in 2007 that the workman raised dispute against the order of termination and appropriate government referred the dispute for adjudication. 36. Thus, for 4 years the workman did not take any steps. 37. On the other hand, immediately after passing of order of penalty the petitioner had filed approval application and the said application was granted by learned Labour Court in August, 2005. 38. It is interesting as well as curious to note that for almost 7 years the petitioner did not take any action against the order dated 11.8.2005 whereby the learned Labour Court granted the approval application and in 2012, the workman filed review application and sought review of the order dated 11.8.2005 granting approval application. 39. During entire period from 23.12.2003 until the date of award, the workman was not in service. The employer's action of terminating his service is not found unjustified on any other ground except the subjective opinion and view of the learned Labour Court that the penalty is harsh because the misconduct was not as serious as misconduct of theft or misappropriation, that the Court interfered with the order of penalty. 40. In backdrop of this fact when the award by learned Labour Court is examined it translates into the fact that the claimant is not visited with any penalty inasmuch as the workman gets benefits of deemed reinstatement and he also gets benefit of continuity of service. Further, learned Labour Court has also awarded benefit of all retiral benefits. Under the circumstances, there is no penalty whatsoever to the workman for proved misconduct which even learned Labour Court found of serious nature. 41. The award granting 30% backwages i.e. denial of 70% backwages in present case cannot be considered penalty for misconduct. Actually, when the learned Labour Court disturbed the order of penalty passed by the employer in exercise of power under Section 11A, ordinarily the workman would not be granted benefit of backwages. 41. The award granting 30% backwages i.e. denial of 70% backwages in present case cannot be considered penalty for misconduct. Actually, when the learned Labour Court disturbed the order of penalty passed by the employer in exercise of power under Section 11A, ordinarily the workman would not be granted benefit of backwages. Instead, in present case, learned Labour Court has even awarded 30% backwages to the workman. 42. From this perspective also the impugned award does not deserves to be sustained. 43. In light of foregoing discussion and for reasons mentioned above, the award deserves to be set aside and is accordingly set aside. 44. However, before parting it is necessary to clarify, in view of the submission by learned advocate for the workman, the amounts payable towards retiral benefits including gratuity and Provident Fund, are not paid to the claimants. In this context, it is necessary to note that the petitioner did not issue any notice to the workman to forfeit gratuity. Any order of forfeiture of gratuity, is not passed by the employer. Any opportunity of hearing is also not granted to the workman before withholding the gratuity. The employer has not proved monetary loss on account of conduct of the workman. Under the circumstances, there is no reason or justification for not paying gratuity to the claimant. 45. Similar is the position so far as Provident Fund is concerned. There is no justification to withhold or forfeit the amounts payable towards Provident Fund to the workman. 46. Therefore the employer - petitioner shall immediately take necessary steps to pay amounts payable to the petitioner toward said benefits. With aforesaid clarification, the petition is allowed and impugned award is set aside. The order of penalty passed by competent authority is restored. Rule is made absolute to the aforesaid extent.