ORDER :

1. The petitioner Municipal Corporation has brought under challenge award dated 19th May 2011 passed by the Labour Court, Ahmedabad in Reference (LCA) No.340 of 2008, whereby the Labour Court has partly allowed the reference by setting aside the order of termination passed on ground of misconduct of remaining absent without leave. The Labour Court has not awarded reinstatement and/or any back-wages, while formally or notionally setting aside the order of termination, in view of the fact that the respondent workman reached the age of superannuation during the pendency of the reference proceedings. The direction requiring the employer to reinstate the respondent is also not passed.

2. All that the Labour Court has awarded to the respondent workman, is direction to the petitioner to pay all terminal benefits to the respondent.

3. So as to appreciate the controversy and challenge raised by the petitioner, it is necessary to take into account some of the relevant facts involved in present case.

2.1. It emerges from the record that the respondent workman had, during the course of employment and while he was on duty, suffered injury.

2.2. The said factual aspect is not in dispute.

2.3. Due to the said injury, the respondent was not able to attend the work and his duties.

2.4. His absence was, by the petitioner employer, considered as unauthorized absence from 8th October 2000.

2.5. The petitioner Corporation did not stop at that decision i.e. decision of considering the petitioner's absence as unauthorized absence but proceeded to issue charge-sheet to the respondent workman on ground of misconduct of remaining absent without leave. The charge-sheet was issued on 7th December 2001.

2.6. The petitioner Corporation then proceeded to conduct departmental inquiry in connection with the said charge-sheet and upon ex parte conclusion of the inquiry the petitioner Corporation passed order dated 17th May 2003 dismissing the respondent workman from employment.

2.7. Aggrieved by the action of petitioner Corporation of terminating his service, the respondent raised an industrial dispute which came to be referred for adjudication to the Labour Court.

2.8. Before proceeding further, it is important and necessary to mention that when he was terminated, he was about to retire within about two months on reaching superannuation and yet, without having regard to the said aspect, the disciplinary authority had proceeded to pass order dated 17.05.2003 dismissing the respondent workman from service.

3. After considering the material on record and the submissions of the contesting parties, the Labour Court found that the penalty inflicted by the petitioner Corporation on the respondent workman for remaining absent after having suffered injury while on duty, was harsh and disproportionate and was not commensurate with the alleged misconduct.

4. Therefore, in exercise of powers under Section 11-A, the Labour Court considered it appropriate and necessary to set aside the said order of termination.

5. While setting aside the order of penalty of terminating the respondent, the Labour Court has exercised its discretion and not awarded any back-wages for the intervening period to the respondent.

6. As mentioned above, all that the Labour Court has directed is that the respondent should be paid his terminal dues.

7. However, the petitioner Corporation is aggrieved by such award and direction. Hence, present petition.

8. Mr. Vyas, learned counsel for the petitioner has appeared and submitted that considering the misconduct, the Labour Court should not have interfered with the penalty order on ground of propriety vis-a-vis the nature of misconduct. He, in alternative, submitted that when the Court considered it necessary to interfere with the said order, appropriate order of penalty for misconduct ought to have been passed. Mr. Vyas also challenged the award on the ground that the petitioner had raised dispute belatedly and therefore the reference should not have been enter