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. 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 appr