Neeta Sawant WP-13958 of 2025

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 13958 OF 2025

Kalyan Dombivli Municipal

Corporation

...Petitioner

V/s.

Shri. Dattatray Devidas Vedpathak ...Respondent

________________

Mr. A.S. Rao, for the Petitioner.

Mr. Piyush P. Hushing with Ms. Gitanjali B. Harihar, for the Respondent.

________________

CORAM: SANDEEP V. MARNE, J.

RESERVED ON: 2 JULY 2026

PRONOUNCED ON: 10 JULY 2026

JUDGMENT:

1) Rule. Rule made returnable forthwith. With the consent of

the learned counsel appearing for parties, the Petition is taken up for

�nal hearing.

2) By this Petition, the Transport Undertaking of Kalyan

Dombivali Municipal Corporation has challenged the Award dated 6

December 2024 passed by the Presiding Of�cer, Second Labour Court,

PAGE NO. 1 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

Thane, partly answering Reference (IDA) No. 154 of 2018 in the

af�rmative. The Labour Court has declared discharge of the Respondent-

employee vide order dated 21 April 2015 to be improper and

unjusti�able. The Labour Court has set aside the discharge order and has

directed payment of 50% backwages till attaining the age of retirement

and continuity of service for being considered for retirement bene�ts.

3) Petitioner is a Transport Undertaking of Kalyan Dombivali

Municipal Corporation providing transportation services through buses

in and around the area of Kalyan-Dombivali cities. Respondent was

appointed as a badli Driver on daily wage basis vide order dated 11 July

1999. By order dated 14 August 2001, he was appointed as a permanent

Driver retrospectively w.e.f. 24 July 2000. Respondent was served with

chargesheet dated 21 October 2014 alleging the misconduct of remaining

unauthorisedly absent from time to time. It was alleged that since July

1999 to December 2013, Respondent had remained absent for 1872 days

and that he was punished on several occasions in the past. Enquiry was

conducted into the charges levelled against the Respondent in which he

participated. The Enquiry Of�cer submitted report holding that the

charges levelled were proved. The Disciplinary Authority thereafter

proceeded to pass order dated 21 April 2015 removing the Respondent

from service.

4) At the instance of the Respondent, the Appropriate

Government made a Reference to Second Labour Court, Thane in relation

to demand of the Respondent for reinstatement in service with full

backwages and continuity w.e.f. 22 April 2015. Respondent �led his

PAGE NO. 2 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

Statement of Claim, which was resisted by the Petitioner by �ling

Written Statement. The Labour Court framed preliminary issues relating

to fairness in the enquiry and perversity in the �ndings of the Enquiry

Of�cer. By Part-I Award dated 4 July 2024, both the issues were answered

in favour of the Petitioner and against the Respondent. Respondent

examined himself. Petitioner led evidence of Traf�c Inspector. After

considering the pleadings, documentary and oral evidence, the Labour

Court has delivered Award dated 6 December 2024 answering the

Reference partly in the af�rmative. The Labour Court has set aside the

discharge order dated 21 April 2015. However, since the Respondent had

crossed the age of retirement in May 2022, the Labour Court has directed

payment of 50% backwages to him upto May 2022 in addition to grant of

bene�t of continuity of service for the purpose of retirement bene�ts.

Aggrieved by the Award dated 6 December 2024, the Petitioner has �led

the present Petition.

5) Mr. Rao, the learned counsel appearing for the Petitioner

submits that the Labour Court has erred in holding that the punishment

of dismissal is disproportionate to the misconduct proved. That the

Respondent did not produce any evidence of the alleged paralysis attack.

That no medical certi�cates were produced either before the Labour

Court or with the Petitioners. That therefore the �nding of sickness

recorded by the Labour Court is perverse and based on no evidence. That

the Labour Court has accepted the position that Respondent is a case of

chronic absenteeism and that he was punished on several occasions in

the past. He submits that during the period from 1999 to 2013,

Respondent was absent for 1872 days as against presence for 3402 days.

PAGE NO. 3 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

That he absented for 202 days and 205 days in the years 2012 and 2013.

That a Driver remaining absent for such a long time without intimation

puts the Petitioner-employee in dif�culty in operating municipal bus

service. That therefore the punishment of dismissal is proportionate to

the misconduct proved. In support, he relies on judgment of this Court

in Brihan Mumbai Electric Supply and Transport Undertaking vs.

Kishor Gulab Salve

1

.

6) Per contra, Mr. Hushing, the learned counsel appearing for

the Respondent opposes the Petition, submitting that the Labour Court

has correctly appreciated the evidence on record for arriving at the

conclusion that the punishment imposed on the Respondent is

disproportionate. That there is no element of perversity in the �ndings

recorded by the Labour Court. That the case involves correct exercise of

jurisdiction under Section 11A of the Industrial Disputes Act, 1947. That

the provision confers discretionary power on the Labour Court, and this

Court cannot interfere in the discretion exercised by the Labour Court.

That the case does not involve willful insubordination or deliberate

dereliction of duties. That the action was forced upon the Respondent

due to grave and debilitating medical conditions, namely paralysis. That

therefore Petitioner ought to have been compassionate towards the

Respondent instead of dismissing him from service. He takes me through

the cross-examination of the Petitioner’s witness who has admitted the

factum of Respondent suffering from paralysis. That the Labour Court

has rightly held that past service record of the workman cannot be used

as an aggravating factor. He relies on judgment of the Apex Court in

1 2024 SCC Online Bom 2586

PAGE NO. 4 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

Scooters India Ltd. Lucknow vs. Labour Court, Lucknow & Ors.

2

That

the Labour Court has awarded only the relief of 50% backwages though

the dismissal is held to be invalid. That Respondent has already retired

from service.

7) Mr. Hushing also relies on judgment of the Apex Court in

the case of Nicholas Piramal India Limited vs. Harisingh

3

. He submits

that considering the facts and circumstances of the present case, this

Court need not interfere in exercise of discretion by the Labour Court.

He prays for dismissal of the Petition.

8) I have considered the submissions and have gone through

the reasons recorded by the Labour Court in the impugned Award. I have

also perused the records of the case �led with the Petition.

9) Respondent is dismissed from service by the Petitioner-

employer w.e.f. 21 April 2015 after he was found guilty of unauthorised

absence for a considerable period of time. Respondent was appointed in

service initially on badli basis on 11 July 1999 and was apparently

brought on regular establishment since 24 July 2000. It appears that

Respondent made it a policy to remain absent for a considerable period

of time since the year 2000. The details of days of absence of the

Respondent during 1999 to 2013 are spelt out in the chargesheet which

are as under:

व�t हजर � वस गैरहजर � वस

१९९९ १६४ ०

२००० ३११ ५४

2 1989 Supp. (1) SCC 31

3 (2015) 8 SCC 272

PAGE NO. 5 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

२००१ ३१४ ५१

२००२ ३०० ६५

२००३ २३३ १३२

२००४ २७७ ८८

२००५ २९५ ७०

२००६ २९४ ७१

२००७ १६३ २०२

२००८ १९१ १७४

२००९ ९४ २७१

२०१० १६४ २०१

२०११ २७९ ८६

२०१२ १६३ २०२

२०१३ १६० २०५

एकूण ३४०२ १८७२

10) In at least �ve different years - in 2007, 2009, 2010, 2012 and

2013, Respondent remained unauthorisedly absent for over 200 days.

Thus, for more than half a year, he did not attend the duties. Respondent

is also punished on several occasions in the past. The details of past

record of the Respondent are as under:

१) जा�/कडोमपा/प�र/वाह/अपराध/६२, � नांक ०७/०६/२००२ अ�वये � नांक २५/०५/२००२

ते २८/०५/२००२ या कालावधीत कोणतीही पूव, सुचना न ेता काम�गरी गैरहजर अस�या�करणी

"अपराध �करणी" समजप� े�यात आलेले आहे.

२) जा�/कडोमपा/प�र/अप/आगार/१३६, � . २६/०७/२००४ अ�वये � . २३/०७/२००४ रोजी

�वना परवानगी गैरहजर रा�ह�या�करणी "�ापन" े�यात आलेले आहे.

३) जा�/कडोमपा/प�र/मुका/२२७५, � नांक ४/०२/२०१२ अ�वये � नांक ०१/१०/२०१० ते

� नांक १२/०१/२०११ या कालावधीम�ये एकूण १०४ � वस �वनापरवानगी, �वनासंमती,

रजे�7वाय काम�गरीवर गैरहजर रा�ह�या�करणी अपराध �करणी 7ासन �हणून एक वा��क वेतनवाढ

०१ व�ा,करीता रोख�यात आली आहे.

४) जा�/कडोमपा/प�र/पुका/१७६१, � . २७/१२/२०१२ अ�वये माहे स�ट�बर २०१२ म�ये एकूण

१६ � वस �वनासंमती गैरहजर रा�ह�या�करणी �पये ८००/- ंड करणेत आलेला आहे.

PAGE NO. 6 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

५) जा�/कडोमपा/प�र/आगार/२२, � . २५/०५/२०१२ अ�वये � नांक २०/०५/२०१२ या � व7ी

�वना संमती गैरहजर रा�ह�याने अपराध �करणी 7ासन �हणून �पये ५०/- ंड करणेत आलेला आहे.

६) जा�/कडोमपा/प�र/आगार/२२, � .२५/०५/२०१२ अ�वये � नांक २१/०५/२०१२ या � व7ी

�वना संमती गैरहजर रा�ह�याने अपराध �करणी 7ासन �हणून �पये ५०/- ंड करणेत आलेला आहे.

७) जा�/कडोमपा/प�र/आगार/२९, � . २८/०५/२०१२ अ�वये � . २७/०५/२०१२ या � व7ी

�वना संमती गैरहजर रा�ह�याने अपराध �करणी 7ासन �हणून �पये ५०/- ंड करणेत आलेला आहे.

८) जा�/कडोमपा/प�र/आगार/२७, � . २८/०५/२०१२ अ�वये � नांक २८/०५/२०१२ या � व7ी

�वना संमती गैरहजर रा�ह�याने अपराध �करणी 7ासन �हणून �पये ५०/- ंड करणेत आलेला आहे.

९) जा�/कडोमपा/प�र/आगार/५१, � . १६/०६/२०१२ अ�वये � नांक ०९/०६/२०१२ या � व7ी

�वना संमती गैरहजर रा�ह�याने अपराध �करणी 7ासन माणून �पये ५०/- ंड करणेत आलेला आहे.

१०) जा�/कडोमपा/प�र/पुका/१९६८, � नांक १५/०२/२०१३ अ�वये � नांक १७/११/२०१२ ते

२१/०१/२०१३ पयAत एकूण ६६ � वस �वनासंमती काम�गरीवर गैरहजर रा�ह�या�करणी अपराध

�करणी 7ासन �हणून �पये ४५०/- इतका ंड करणेत आलेला असून गैरहजेरीचा कालावधी

सेवाखंड �हणून �ा� धरलेला आहे.

११) � नांक १७/११/२०१२ ते २१/०१/२०१३ पयAत एकूण ६६ � वस �वनासंमती काम�गरीवर

गैरहजर रा�ह�या�करणी � नांक १२/०२/२०१३ रोजी "वैय�ीक बंधप�" �लहून घेवून � नांक

१६/०२/२०१३ रोजीपासून काम�गरीवर हजर क�न घे�यात आलेले आहे.

१२) जा�/कडोमपा/प�र/मुका/उप�य/११९, � नांक १२/०८/२०१३ अ�वये माहे जुन २०१३ ते

जुलै २०१३ या कालावधीत फ� १५ � वस काम�गरीवर उप�MNत रा�ह�याने उव,रीत ४५ � वस

�वनासंमती गैरहजर रा�ह�या�करणी ०७ � वस �वनावेतन �नलंबीत कर�यात आलेले आहे.

१३) जा�/कडोमपा/प�र/मुका/१३२९, � नांक १३/०१/२०१४ रोजी "अं�तम नोटीस" बजावणेत

आलेली आहे.

11) Thus, for misconduct of unauthorised absence, action has

been taken against the Respondent at least on 13 occasions in the past. It

thus appears that Respondent has become a chronic case of absenteeism.

The last action taken against him was in respect of absence from June to

July 2013. It appears that the last long absence during 2012 and 2013

became the reason for initiation of disciplinary proceedings against the

Respondent. Otherwise, Petitioner used to penalise the Respondent by

imposing �ne on him during the years 2012 and 2013. Prior to that, he

was once punished during 2010 and 2011 by withholding his increment.

PAGE NO. 7 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

12) Respondent took a defence that he was suffering from

paralysis and was prevented from attending the duties. However, the

exact date from which Respondent started suffering from the ailment

was not pleaded by him in the Statement of Claim. The vague averments

in the Statement of Claim are as under:

h. The Second party state that the Second party was suffering from paralysis

and some other diseases and domestic problems however, the First party has

not considered the same or not allotted any light duty and victimized him by

issuing the termination order.

Thus, Respondent vaguely pleaded that he was suffering from ‘paralysis

and some other diseases and domestic problems’.

13) As observed above, the enquiry is held to be fair and proper.

The �ndings of the Enquiry Of�cer are not considered perverse by the

Labour Court. Thus, the charge of unauthorised absence is correctly held

to be proved by the Labour Court. This would essentially mean that the

defence of the Respondent about suffering from paralysis is not accepted

by the Labour Court as a justi�cation of remaining unauthorisedly

absent. However, when the Labour Court took up the issue of legality of

the punishment under Section 11A of the ID Act and went into the issue

of proportionality of penalty, it appears that the Labour Court has taken

into consideration the factor of paralytic attack. This is clear from the

�ndings recorded in para-20 of the Award which reads thus:

20. The last absenteeism which led to the issuance of impugned charge-sheet,

is of period from February 2013 to November 2013. It is the allegation that

during that period second party was absent for 205 days. There is no dispute

thereabout. However, it is the contention of second party that, he sustained

PAGE NO. 8 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

paralysis attack and therefore, during that period he was not in position to

discharge his duty. It is his case that, he submitted several applications to the

�rst party praying either to allot him lite duty or accept his resignation. But his

applications were not considered. Second party deposed to that effect in his

evidence af�davit. Nothing was elicited during his cross-examination which

could have afforded ground to deduce otherwise. On the contrary, he reiterated

that he sustained paralysis attack in year 2014-15, but does not recollect exact

date.

14) From the above �ndings recorded in para-20 of the

impugned Award where the Labour Court has taken into consideration

the claim of the Respondent about seeking light duty due to paralysis

attack, it appears that the Respondent took a defence that the paralytic

attack was suffered before dismissal from service. However, admittedly,

no Medical Certi�cate was produced by him before the employer about

sufferance of paralytic attack before dismissal from service. Even before

the Labour Court, apparently no Medical Certi�cate was produced by the

Respondent. The Labour Court has merely relied upon some stray

admission in the cross-examination of Petitioner's witness for assuming

that the Respondent did suffer from paralysis. The relevant admission in

the cross-examination given by the witness of the Petitioner is as under:

I personally know Dattatray Ved Pathak i.e. second party. As per the record, he

was suffering from paralysis in the year 2013-2014. Now I am shown

documents at Pg. No.62 to 65 of list Exh.C-4. It is correct to say that they are

the applications of the second party submitted with the �rst party. They are

marked as Exh.C-6 (colly).

15) For holding that the Respondent was not given light duty,

the Labour Court has recorded following �ndings:

However, in reply to the question that despite request of second party, he was

not given lite work, this witness stated that such applications were �led

belatedly in year 2015. However, perusal of such applications �led by the

PAGE NO. 9 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

second party shows that, they were submitted during the period from March

2013 till April 2015. Therefore, it does not appear that such applications were

�led belatedly as stated by above witness.

16) Mr. Hushing has placed on record compilation of documents

with which copies of various applications submitted by the Respondent

are produced. It appears that on 26 June 2013, an application was

submitted by the Respondent stating that he was sick from 12 June 2013.

The application does not indicate that he had suffered paralytic attack.

The second application was submitted on 12 July 2013, which was not

supported by any Medical Certi�cate. In that application, the sickness

referred to him was 'बी.पीचा �ास हात पाय गळणे'.

17) There is a medical certi�cate of one “Sushrusha Clinic”

dated 24 August 2013 covering period from 12 July 2013 to 23 August

2013, which does not make any reference to paralytic attack and is issued

in respect of the ailments of typhoid and bodyache. Another application

submitted on 24 December 2013 is placed on record, in which again no

speci�c ailment was referred. Petitioner has also relied upon application

dated 3 March 2015 in which the ailment indicated is ‘blood pressure’.

Petitioner has also placed on record several medical certi�cates, none of

which remotely suggest sufferance of paralysis by the Respondent. Most

of the certi�cates are in respect of ailment of hypertension.

18) The application for light duty was submitted for the �rst

time in 17 March 2015, i.e., a month before his dismissal. The light duty

was sought due to old age. The application does refer to two past

paralysis attacks. However, the said claim was totally vague. The Labour

PAGE NO. 10 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

Court has not taken into consideration the contents of various

applications and certi�cates relied upon by the Respondent and has

blindly accepted the claim of paralysis and non-grant of light duties by

recording following perverse �ndings:

21. Further, �rst party has not disputed the submissions of such applications by

second party. In fact, �rst party has �led the copy of such applications with list

Exh.C-4 (Pg.No.57 to 65). During cross-examination, the witness of �rst party

admitted that as per the record, second party was suffering from paralysis in

year 2013-14. He also identi�ed the applications of second party. Hence they

came to be marked as Exh.C-6. However, in reply to the question that despite

request of second party, he was not given lite work, this witness stated that

such applications were �led belatedly in year 2015. However, perusal of such

applications �led by the second party shows that, they were submitted during

the period from March 2013 till April 2015. Therefore, it does not appear that

such applications were �led belatedly as stated by above witness.

19) Thus, there is total absence of any medical evidence

suggesting sufferance of paralysis by the Respondent during the relevant

period. In only one application submitted few days before dismissal, the

Respondent made vague reference to past two paralytic attacks.

Otherwise, there is absolutely nothing on record to indicate that

paralysis prevented him from attending duties during the years 2012 to

2015.

20) It must be borne in mind that the Petitioner runs a

municipal transport service. If a driver is unauthorisedly absent from

time to time and for a considerable period of time without giving prior

intimation, the same drastically affects the schedule of operation of

buses. Therefore, the misconduct of remaining unauthorisedly absent

may entail slightly severe punishment for a bus driver of public transport

PAGE NO. 11 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

undertaking as compared to a clerk working in the of�ce. The Labour

Court ought to have taken this factor into consideration while deciding

the issue of proportionality of penalty. It appears that Petitioner gave

repeated opportunities to the Respondent to improve. The Respondent

had submitted a personal bond on 12 February 2013 about regularly

attending the duties, and on that condition, he was permitted to join the

duties. However, after submitting such undertaking, he remained absent

for 169 days during January to August 2014. The Petitioner thus faced a

situation where Respondent had become incalcitrant and was a chronic

case of absenteeism. Imposition of lighter penalties or �ne in the past

apparently did not have much impact on the Respondents for improving

his conduct. In these circumstances, Petitioner was left with no

alternative but to dismiss the Respondent from service.

21) Instead of appreciating the above position, the Labour Court

assumed the claim of ailment of paralysis merely on the strength of

admission given by the Petitioner’s witness of Respondent suffering from

paralysis in the year 2013. However, the Labour Court erred in not

appreciating the position that in none of the applications except one,

Respondent ever raised the claim of having suffered paralytic attack. His

absence is sought to be justi�ed by giving pretext of ailment of

hypertension. In my view therefore, the Labour Court has recorded

perverse �ndings on the issue of proportionality.

22) Ordinarily, this Court would not have interfered with the

relief granted in favour of an employee who has been dismissed from

service only on account of unauthorised absence. If the absence is not for

PAGE NO. 12 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

signi�cant period, the High Court would not interfere in the relief

granted by the Labour/Industrial Courts even if there is no proper

justi�cation for absence. However, when absence is for a long period and

where the employee has become a chronic case of absenteeism, the

Labour Court must demand proper justi�cation for such absence. It is

only when absence is justi�ed with proof of medical treatment, the

Labour Court would be justi�ed in interfering in the quantum of

punishment. In the present case, not only the absence is inordinate and

chronic but the same is also not supported by medical certi�cates. In

such circumstances, the Labour Court ought not to have offered the relief

of 50% backwages on a platter. This would be like rewarding the

Respondent despite remaining unauthorisedly absent for a considerable

period of time. It is a well-known position that a municipal transport

undertaking cannot sustain itself only through its operations. The

municipal transport service is often required to be subsidised or funded

through external sources. In these circumstances, if employees

committing misconduct are rewarded with backwages, the same would

put a �nancial strain on the Undertaking. In my view therefore, award of

50% backwages to the Respondent in the facts and circumstances of the

present case was clearly unwarranted. Even direction for payment of

pension in the facts and circumstances of the present case would put a

huge �nancial burden on the Petitioner-Undertaking. In about 14 years

from 2000 to 2013, there is absence for 1872 days. Even after issuance of

chargesheet, it appears that the saga of unauthorised absence continued.

On this count, I am unable to consider grant of relief of payment of

pension. This is not a case where Respondent has worked diligently

PAGE NO. 13 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

during his tenure from 1999 to 2014. The table reproduced above would

indicate that he was unauthorisedly absent almost in every year from

2000 till he was dismissed from service. His trend of remaining absent

continued even after issuance of chargesheet. He attained the age of

superannuation in May 2022. He is out of service from 21 April 2015 and

has admittedly not worked for 7 long years between 2015 to 2022. Even

his service upto the year 2014 is riddled with chronic absenteeism.

Considering these facts, Respondent cannot be rewarded with grant of

pensionary bene�ts, which would impose continuing �nancial liability

on the Petitioner. Instead, Respondent can be awarded a lump sum

compensation of Rs. 3,00,000/-. Award of compensation is purely by way

of indulgence considering that there is some admission by the

Petitioner’s witness about sufferance of paralysis by the Respondent.

23) In view of the above discussion, the impugned Award passed

by the learned Presiding Of�cer of the Labour Court is clearly

unsustainable and liable to be modi�ed by awarding only lump sum

compensation to the Respondent.

24) Petition accordingly succeeds in part, and I proceed to pass

the following order:

(i) Award dated 6 December 2024 passed by the Labour

Court, Thane in Reference (IDA) No. 154/2018 is set aside

and modi�ed.

PAGE NO. 14 of 15

10 JULY 2026

Neeta Sawant WP-13958 of 2025

(ii) Petitioner shall pay to the Respondent lump sum

compensation of Rs. 3,00,000/- towards full and �nal

settlement of all his dues within 8 weeks.

(iii) Beyond the lump sum compensation so awarded, the

Respondent shall not be entitled to any other service-

related bene�ts from the Petitioner.

(iv) If the awarded amount is not paid within the stipulated

period, the same shall carry interest @ 8% per annum

from the date of expiry of period of 8 weeks.

25) The Writ Petition is partly allowed in above terms. Rule is

partly made absolute. There shall be no order as to costs.

[SANDEEP V. MARNE , J.]

PAGE NO. 15 of 15

10 JULY 2026

NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.07.10

18:40:12

+0530