Case Note & Summary
The petitioner, Mr. Balasaheb Madhukar Bende, was appointed as a bus conductor by the BEST Undertaking (Respondent No.1) on 5 April 1989. He remained absent from 11 October 1999 to September 2000 for a total of 43 days. Out of these, he applied for sick leave for 25 days with medical certificates, applied for 7 days casual leave, but the remaining 11 days of absence were without any permission or application. A charge sheet was issued under Standing Orders Clause 20(f) of the BEST Undertaking, which defines habitual absence without leave or absence without leave for more than 15 consecutive days as misconduct. An inquiry was conducted in which the petitioner participated. The inquiry officer, based on the leave record, found that the petitioner had no sick leave or casual leave to his credit, and therefore the leave applications were not sanctioned. The 11 days of absence were completely unexplained. The inquiry officer held the charge proved. The disciplinary authority, who was also the inquiry officer (Traffic Officer), considered the petitioner's past record, which showed that he had been punished on 7 occasions for similar absence. Consequently, the petitioner was dismissed from service. The petitioner challenged the dismissal by filing Application (BIR) No.49 of 2001 before the 8th Labour Court, Mumbai, which was dismissed on 7 October 2003. He then filed Appeal (IC) No.13 of 2004 before the Industrial Court, Mumbai, which was also dismissed on 12 January 2005. Aggrieved, the petitioner filed the present writ petition under Article 227 of the Constitution of India. The High Court examined the findings of the courts below and noted that the petitioner had a history of absenteeism and had been punished 7 times earlier. The court held that the punishment of dismissal was not disproportionate to the misconduct, as the petitioner was a habitual absentee. The court also noted that the petitioner had not challenged the inquiry proceedings or the findings of the inquiry officer. Therefore, the High Court dismissed the writ petition, confirming the dismissal of the petitioner.
Headnote
A) Service Law - Misconduct - Habitual Absence - Standing Orders Clause 20(f) - The petitioner, a bus conductor, was absent for 43 days without proper leave, with only 25 days sick leave and 7 days casual leave applied for, and 11 days unexplained. The inquiry officer found the charge proved. The disciplinary authority, considering the petitioner's past record of 7 punishments for similar absence, imposed dismissal. The Labour Court and Industrial Court upheld the dismissal. The High Court held that the punishment of dismissal was not disproportionate given the habitual nature of the absence and the past record, and declined to interfere under Article 227. (Paras 1-10)
Issue of Consideration
Whether the punishment of dismissal for habitual absence was proportionate and whether the courts below erred in confirming the dismissal.
Final Decision
The High Court dismissed the writ petition, confirming the dismissal of the petitioner from service. The court held that the punishment of dismissal was not disproportionate given the habitual nature of the absence and the past record of the petitioner.
Law Points
- Habitual absence without leave constitutes misconduct under Standing Orders
- Past record of similar misconduct justifies dismissal
- Proportionality of punishment is not interfered with in writ jurisdiction unless shocking or disproportionate
