( 1 ) THE undisputed facts leading to this petition to be briefly stated are as under :- the petitioner joined the employment of respondent i. e. BEST undertaking on 10-4-1980 as a conductor. He was issued a charge sheet for unauthorised absence of 55 days during the period from April, 1991 to March, 1992, on 20-4-1994, explanation submitted by him was not found satisfactory and therefore, a domestic enquiry was ordered. He participated in the enquiry, submitted his defence statement on or about 14-7-1994 and the Enquiry Officer in his report held that the charge of remaining absent without leave was duly proved. By an order dated 10-8-1994 he was dismissed from service by way of punishment and his appeal submitted under the service Rules came to be rejected on 13-9-1994. He, therefore, preferred second appeal under the service Rules and that also came to be rejected on 25-11-1994. He, therefore, challenged the order of dismissal by filing an application before the Labour Court under section 78 of the Bombay Industrial Relations Act, 1946. The management appeared before the labour Court in application (BIR) No. 38 of 1995 and opposed the relief prayed for. The learned Judge of the 4th Labour Court at Mumbai after hearing both the parties and taking into consideration the evidence placed before him, was pleased to allow the application partly vide his judgment and order dated 11-1-1996. The management was directed to reinstate the applicant-employee as a last chance without backwages but continuity in service. In addition, his two increments were directed to be withheld permanently after he resumed duties and his case was directed to be reviewed after two years. This order passed by the Labour Court came to be challenged before the industrial Court at Mumbai in Appeal (IC) No. 24 of 96 and the learned President of the Industrial Court was pleased to allow the appeal filed by the Management vide his judgment and order dated 25-4-1996. The order of reinstatement passed by the Labour Court was set aside and the punishment of dismissal was upheld. Hence, this petition filed by the dismissed employee.

( 2 ) MRS. Karnik, the learned counsel for the petitioner submitted that the labour Court having considered the totality of circumstances and the nature of the misconduct proved against the petitioner had exercised its discretionary powers and moulded the relief by directing his reinstatement and denied the benefit of backwages. This order was passed within the powers available under sections 78 and 79 of the B. I. R. Act and, therefore, there was no reason for the industrial Court to interfere in the same. The Industrial Court proceeded under the misconception that the Labour Court had no powers to mould the relief under sections 78 and 79 of the B. I. R. Act at par with the powers available under section 11-A of the Industrial Disputes Act, 1947. The reliance placed by the industrial Court on the decision of this Court in the case of Mohan Ganpat Nikam vs. National Textile Corporation and ors. , 1996 Mh. L. J. 7697, was grossly erroneous. It was further contended that the Industrial Court in appeal exceeded its powers in setting aside the relief granted by the Labour Court. Reliance in this regard has been placed on the decision of Division Bench of this Court in the case of Vithoba Maruti Chavan vs. S. Taki Bilgrami, 1964 Mh. L. J. 717.

( 3 ) MR. Palshikar appearing with Mr. Talsania and with Ms. Rita Vora i/b m/s Crawford Bailey and Co. the learned counsel for the respondent management, on the other hand, has supported the impugned decision of the industrial Court. It was urged that of the petitioner was a case of chronic absenteeism and in spite of four opportunities having been granted from 1989 onwards, he did not improve his attendance and his habit of remaining absent without leave. The proved charges, if considered in this background, would be serious enough to warrant the extreme punishment of dismissal from service