JUDGMENT : M. K. Thakker, J. 1. The present petition is filed under Article 227 of the Constitution of India challenging the judgment and award passed by the learned Labour Court, Bharuch in reference LCB No.376 of 1998 dated 26.04.2005 whereby, petitioner has been directed to reinstate the respondent no.2 with 20% back wages. 2. The facts needed to be discussed for the disposal of the case is that: 2.1. The petitioner company is engaged in the business of manufacturing and in the sale of various chemicals and pesticides etc. The respondent no.2 who is the workman came to be engaged by the petitioner company in December 1989. Previously, respondent no.2 was working in company namely Ficom Organics Ltd. from where he resigned as he was caught in theft and subsequently, raised industrial dispute on the allegation of dismissal of service. While filling up the form of personal detail with the petitioner company at the time of appointment, that fact has not been disclosed by the respondent no.2. On joining with the present petitioner as Wireman, his work was found unsatisfactory and he was in habit of frequently remaining absent without prior leave or intimation. For such unauthorized leave, charge-sheet came to be issued on 21.06.1994 and thereafter, departmental inquiry was initiated and on conclusion of the inquiry, with a view to provide opportunity of improvement, the Company decided to take a lenient approach and petitioner Company imposed punishment of 1 day suspension. Unfortunately, thereafter also, he continued to remain absent frequently without leave. Again, the charge-sheet came to be issued on 25.12.1996 for remaining absent for the period from April, 1994 to November 1996 for almost 141 days and thereafter, departmental inquiry was initiated with effect from 06.01.1997. On providing reasonable and sufficient opportunity to defend his case, the report was submitted by the Inquiry Officer holding that on the basis of evidence obtained during the inquiry, charge was proved. Thereafter, show cause notice came to be issued on 19.12.1997 calling for explanation of respondent no.2 regarding the proposed punishment. Vide communication dated 25.12.1997, ten days time was sought to give explanation regarding proposed penalty and thereafter, on 12.01.1998 reply was filed through the advocate of respondent no.2. As respondent had not submitted any explanation or response to the second show cause notice, again vide communication dated 19.01.1998, response was asked regarding second show cause notice. 2.2. Vide communication dated 25.12.1997, ten days time was sought to give explanation regarding proposed penalty and thereafter, on 12.01.1998 reply was filed through the advocate of respondent no.2. As respondent had not submitted any explanation or response to the second show cause notice, again vide communication dated 19.01.1998, response was asked regarding second show cause notice. 2.2. Thereafter, vide communication dated 27.01.1998 respondent no.2 tendered his reply-cum-explanation. The petitioner company vide order dated 07.04.1998 has dismissed the service of respondent no.2 and communication was forwarded to that effect on the same day with the cheque of Rs.19,251/- towards full and final settlement of his legal payable dues. Being aggrieved by the action of the petitioner company the dispute was raised before the Conciliation Officer which was resulted in the failure and thereafter appropriate government order of reference on 14.09.1998 referring the dispute for adjudication to the learned Labour Court. Labour Court, after considering the averments made in the statement of claim and written statement as well as on appreciation of evidence, has passed the judgment and award on 26.04.2005 directing the petitioner Company to reinstate the respondent no. 2 with effect from 01.10.2001 with 20% back wages which is the subject matter of challenge before this Court. 3. Heard learned advocate Ms.Nancy Soni for M/s Trivedi & Gupta and though appearance of the respondents were filed, no one has remained present and the time of hearing. Learned advocate Ms.Nancy Soni submits that the legality and validity of the departmental proceedings were not disputed by the learned Labour Court however, the learned labour Court has held that petitioner though remained on unauthorized leave but as there were leave in his account, therefore, the punishment which was imposed is disproportionate. Learned advocate Ms.Nancy Soni submits that after full fledged inquiry and providing sufficient opportunity the inquiry concluded resulting into dismissal order and thereafter, after lump sum composition was also paid towards full and final settlement which was also accepted thereafter it was not open for the respondent to challenge the order of dismissal before learned Labour Court on the ground of disproportionate punishment. Learned advocate Ms.Nancy Soni relies on Rule 13(2) of the Bombay Industrial Employment (Standing Orders) Rule, 1959 and submitted that workman who desires to obtain leave of absence shall apply in writing to the superior or any Officer appointed for the purpose by the Company. Learned advocate Ms.Nancy Soni relies on Rule 13(2) of the Bombay Industrial Employment (Standing Orders) Rule, 1959 and submitted that workman who desires to obtain leave of absence shall apply in writing to the superior or any Officer appointed for the purpose by the Company. In the event of non intimation, the departmental inquiry was rightly initiated and was concluded in the dismissal order. Learned advocate Ms.Nancy Soni submits that previously also for the same charge departmental proceedings were initiated and with a view to provide one opportunity the said departmental culminated onto one day suspension order. Thereafter also, there was no improvement in the conduct or attendance of the respondent no.2. In that background the order passed by the learned Labour Court requires to be set aside and the punishment imposed in the departmental proceedings is required to be upheld. 3.1. Learned advocate Ms.Nancy Soni relies on the decision of the Apex Court in the case of L&T Komatsu Ltd. Vs. N.Udayakumar reported in (2008) 1 SCC 224 and M.P.Electricity Board Vs Jagdish Chandra Sharma reported in (2005) 3 SCC 401 and submitted that once it is found that all procedure requirement has been complied with, the Court would not ordinarily interfere with the quantum of punishment imposed upon delinquent employee. If the decision of the employer is found within legal parameters, the jurisdiction would not to be involved with misconduct is proved. Learned advocate Ms.Nancy Soni submits that learned labour Court only on the ground that there are leave in the account of the respondent no.2 therefore, leave in the account as per the leave card and therefore, punishment which is impose is harsh and same was set aside on that ground. Learned advocate Ms.Nancy Soni submits that without considering the settled proposition of law the interference was made by the learned Labour Court under section 11(A) of the I.D.Act and therefore, same is required to be set aside and the petition is required to be allowed. 4. Considering the submissions made by the learned advocate Ms.Nancy Soni and on perusing the reasons assigned by the learned Labour Court as well as on referring the inquiry report produced along with memo of the petition, it transpires from the record that respondent was appointed on the post of Wireman on 23.12.1989. 4. Considering the submissions made by the learned advocate Ms.Nancy Soni and on perusing the reasons assigned by the learned Labour Court as well as on referring the inquiry report produced along with memo of the petition, it transpires from the record that respondent was appointed on the post of Wireman on 23.12.1989. It transpires from the report submitted by the Inquiry Officer that despite several opportunities were provided he did not remain present before the Inquiry Officer to lead any evidence in his defence. Previously, vide the communication dated 07.02.1996, 28.11.1995 and 12.07.1995 intimation was given to the respondent no.2 for not taking leave without prior intimation and to improve the conduct. Departmental inquiry which was initiated on 21.06.1994 resulted into one day suspension vide order dated 25.08.1994. It was informed by the petitioner Company that petitioner is engaged in the manufacturing of various chemicals and pesticides and therefore, being a Wireman his absence without intimation would cause huge loss to the petitioner Company. With a view to provide opportunity of improvement, minor punishment was imposed in the year 1994 of one day suspension. It transpires that thereafter also there was no improvement on the conduct of the present petitioner. It is undisputed fact that during the period of April 1994 to December 1994 respondent no.2 was on unauthorized for 36 days, from January 1995 to December 1995 he was on unauthorized leave for 56.5 days, from January 1996 to November 1996 he was on unauthorized leave for 49 days. In all, respondent no.2 remained on authorized absence for the period of total 141.5 days. It is true that as per the leave card which was produced, the leaves are in the credit of account of respondent no. 2 but as per the Standing Orders Rule 13(2) workman has to apply at least 7 days before the date from which his leave is to commence, to the superior officer. 4.1. Rule 13(2) of the Bombay Industrial Employment (Standing Orders) Rule, 1959 is reproduced hereinbelow: (2) A workman who desires to obtain leave of absence shall apply in writing to the Manager or any officer appointed for the purpose by the Manager. Such application for leave shall be made at least seven days before the date from which leave is to commence, except in urgent cases or unforeseen circumstances when it is not possible to do so. Such application for leave shall be made at least seven days before the date from which leave is to commence, except in urgent cases or unforeseen circumstances when it is not possible to do so. The Manager or any officer empowered by him in this behalf shall issue orders on such application within three days of the presentation of the application and in cases of an urgent nature immediately. If the leave asked for is granted, a leave pass showing the date from which the leave of absence commences and the date on which the workman will have to resume duty shall be issued to the workman. Where leave is refused or postponed, the fact of such refusal or postonement and the reasons therefore shall be recorded in writing in a register to be maintained for the purpose, and if the workman so desires a copy of such entry in the register shall be supplied to him. 5. It is also not disputed by the learned Labour Court that there was any prior leave applied nor any intimation was given by the respondent no.2. As per the report submitted by the Inquiry Officer it was admitted before him by the respondent no.2 that due to ill health of the family members and as he was staying at Bharuch he remained on authorizedly absent for the period stated in the charge-sheet. Learned Labour Court did not dispute the legality and validity of the inquiry, however as it is observed in the order that in the year 1994 there were 36 unauthorized leaves, in the year 1995 there were 56.5 unauthorized leaves and in the month of January, 1996 to December, 1996 there were 49 or authorized leave, however, for that no explanation was given. It was held by the learned Labour Court that his past record is clean. It appears that learned Labour Court has overlooked the aspect of previous departmental inquiry and the punishment which was imposed. Learned Labour Court has relied on the leave register and come to the conclusion that there is a balance in his leave card. Therefore, it was held that the dismissal would be disproportionate punishment which was ground for setting aside the order of departmental proceedings. 6. At this stage, the judgment in the case of Chairman & Managing Director, V.S.P & Ors. Therefore, it was held that the dismissal would be disproportionate punishment which was ground for setting aside the order of departmental proceedings. 6. At this stage, the judgment in the case of Chairman & Managing Director, V.S.P & Ors. Vs Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 SCC 569 is required to be referred, which is reproduced hereinbelow: “21.Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India.) ” 7. It is also required to refer the judgment in the case of M.P.Electricity Board Vs Jagdish Chandra Sharma reported in (2005) 3 SCC 401 , wherein it is held as under: “8.The question then is, whether the interference with the punishment by the Labour Court was justified? In other words, the question is whether the punishment imposed was so harsh or so disproportionate to the charge proved, that it warranted or justified interference by the Labour Court? Here, it had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has also been found that this incident was followed by the unauthorised absence of the employee. It is in the context of these charges found established that the punishment of termination was imposed on the employee. The jurisdiction under Section 107-A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well settled. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well settled. In U.P. SRTC v. Subhash Chandra Sharma this Court, after referring to the scope of interference with punishment under Section 11-A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived at that the punishment was shockingly disproportionate to the nature of the charge g found proved, before it could interfere to reduce the punishment. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh this Court after referring to the decision in State of Rajasthan v. B.K. Meena also pointed out the difference between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis-à-vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its b facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd.. N.B. Narawade. This Court summed up the position thus: (SCC p. ? It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd.. N.B. Narawade. This Court summed up the position thus: (SCC p. ? 141, para 20) "20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment." It may also be noticed that in Orissa Cement Ltd. v. Adikanda Sahu and in New Shorrock Mills v. Maheshbhai T. Rao' this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated "punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Muriadih Colliery BCC Ltd. v. Bihar Colliery Kamgar Union this Court after referring to and quoting the relevant passages from Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Tournamulla Estate v. Workmen held: (SCC p. 336, para 17) "The courts below by condoning an act of physical violence have a undermined the discipline in the organisation, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11-A of the Act to interfere with the punishment of dismissal."” 7.1. This Court is of the view that learned Labour Court while allowing the reference has given undue weightage to the leave card as even if in leave card there is a balance of leave as per the standing orders, without prior intimation, if that leave was utilized then it would amount to unauthorized absence. In that view of the matter, learned Labour Court has committed error in exercising the jurisdiction under section 11(A) of the Act and directing the petitioner company to reinstate the respondent to his original post with 20% back wages. 8. Resultantly, this petition is allowed and the impugned judgment and award dated 26.04.2005 directing the petitioner to the institute respondent no.2 with effect from 01.10.2001 with 20% back wages is quashed.