WP 4954 of 2023 - Judgment.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.4954/2023 PETITIONERS : 1. Nagpur Municipal Corporation, Civil (Ori. Respondents) Lines, Nagpur, through its Commissioner, District Nagpur. 2. Health Officer, Nagpur Municipal Corporation, Civil Lines, Nagpur. 3. Assistant Commissioner, Nagpur Municipal Corporation, Laxminagar, Zone No.1, Lalxminagar, Nagpur. ...VERSUS... RESPONDENTS : Shriram S/o Tulasiram Parchake, (Ori. Petitioner) aged about 63 years, Occupation : Service, R/o Plot No.1, Senapati Nagar, Dighori, Nagpur – 440009. ---------------------------------------------------------------------------------------------- Mr. J.B. Kasat, Advocate for petitioners Mr. R.S. Bhure, Advocate for respondent ---------------------------------------------------------------------------------------------- CORAM : SACHIN S. DESHMUKH, J. DATE : 10/07/2025 ORAL JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. By consent of the parties, the petition is heard finally at the stage of admission. 2. The present petition raises an exception to the order rendered by the Member, Industrial Court in the complaint presented by the employee, by which the punishment of inflicting reduction of 20% basic pay from the pension and directions to treat him in continuous 2025:BHC-NAG:7167 WP 4954 of 2023 - Judgment.odt 2 service for a period of absenteeism i.e. 15/04/2015 to 11/07/2018 with consequential benefits, which is the subject matter of challenge in the present petition. 3. Undoubtedly, the respondent/employee was in service with the petitioner – Corporation from the year 1985 as a Moharir in Octroi Department. Thereafter, he was promoted as Daroga in the year 2008 with eventual promotion as a Senior Clerk in 2013, who, thereafter was transferred to the Health Department of the Corporation. However, from 15/04/2015 to 11/07/2018 i.e. for a period of almost three years and two months the respondent was reported to be absent. The absenteeism is without leave in any manner to that effect. After reporting to duties on 12/07/2018 after prolonged absenteeism for the aforestated period, when the employee reported to duties, however, was not allowed to resume duties. In the interregnum i.e. 01/01/2018, a charge-sheet was served upon, wherein the employee has accepted absenteeism, therefore, enquiry culminated into final punishment which is awarded on employee on 11/10/2018, awarding punishment of reduction of 20% basis pay from his pension. 4. The said punishment imposed by the Corporation was subject matter of challenge before the Industrial Court in Complaint (ULP) No.228/2018, wherein the Industrial Court after considering the claim and rival claim has allowed the complaint holding the respondent WP 4954 of 2023 - Judgment.odt 3 was engaged in unfair labour practices, as contemplated under Item 9 of Schedule VI of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short hereinafter “MRTU and PULP Act”), thereby imposing punishment upon the complainant, dated 11/10/2018 and further directions to confer consequential benefits upon setting aside the order of punishment in absence of enabling provision either as minor or major penalty. 5. 5. The learned Counsel for the petitioners has contended that in the wake of admitted absenteeism and the finding being recorded in the enquiry, as a fair and no perversity was recorded and the said order has attained finality. Therefore, it was not open for the Industrial Court to pass the order which is under challenge. 6. Per contra, the learned Counsel for the respondent/employee supported the order submitting that the punishment is not contemplated in the penalties to be imposed under Rule 5 of the Maharashtra Civil Services (Disciplinary and Appeal) Rules, 1979 (for short hereinafter ‘MCS Rules, 1979”) as minor penalties or major penalties and specific contingencies are provided in these penalties and the penalty as has been imposed by the petitioner/Corporation is beyond the scope of penalties as contemplated in Rule 5 of the MCS Rules, 1979. WP 4954 of 2023 - Judgment.odt 4 7. Having considered the submissions and the documents placed on record the fact of continuous absenteeism from the period 15/04/2015 to 11/07/2018 is not disputed by the litigating sides. Nevertheless the order holding the enquiry as a fair and not perverse is also a matter of record, which has attained finality. 8. Undoubtedly, the penalties contemplated under Rule 5 of the MCS Rules, 1979 i.e. minor vis-a-vis major penalties do not contemplate the punishment as has been awarded in the present case i.e. reduction of 20% (basis pay) from the pension, however, considering the fact that the absenteeism is rather accepted as is appearing from the record. The principles of proportionality ought to have been applied by the Industrial Court. Merely because the punishment as is awarded, is not contemplated under Rule 5 of the MCS Rules, 1979, the same could not ispo facto absolve the employee from departmental action. 9. The employee was charge-sheeted by the petitioner – Corporation alleging misconduct of absenteeism for substantial period. The said aspect is not denied by the respondent, however, attempted to justify the circumstances existing at the relevant point of time. Though there is no dispute with regard to the position of law that the jurisdiction of this Court to re-appreciate the evidence leading to initiation of departmental enquiry is extremely limited, and as such to WP 4954 of 2023 - Judgment.odt 5 substitute the finding of fact would be rather in a limited compass. However, at the same time, it is the duty of this Court to ascertain the misconduct, which is proved against the employee and when the punishment is shockingly disproportionate to the misconduct, it is open for this Court to cause interference. 10. Needless to observe that it is a settled law that employer must take into account the length of service, the past service record and nature of misconduct. Here, in this case the petitioner/Corporation has ignored these relevant factors before imposing the penalty, which according to this Court, leads to infraction to the principles of proportionality. 11. Though this Court has come to the conclusion that the punishment imposed upon the respondent/employee is shockingly disproportionate, however, at the same time, since the petitioner/employer can demonstrate the misconduct against the respondent/employee and could be liable to be imposed at least minor penalty, considering the length of service. Since, it is not considered by the Industrial Court instead of recording findings on this issue for the first time, this Court finds that it would be appropriate to relegate the matter back to the Industrial Court for deciding the quantum of punishment to be imposed upon the respondent/employee. Needless to clarify that this is not the case wherein a major penalty can be imposed WP 4954 of 2023 - Judgment.odt 6 upon the employee considering the length of service and eventual promotions conferred upon the said employee. The Industrial Court to pass appropriate orders after hearing both the sides, keeping in mind the observations recorded herein above. In view of above, the writ petition is disposed of in the following terms. 12. The order passed by the Industrial Court, setting aside the order of imposing penalty is upheld. It is held that this is a fit case for imposing any minor and adequate penalty against the respondent/employee and for this purpose, the matter is relegated back to the Industrial Court. 13. The Industrial Court is expected to decide the said issue within a period of three months from the date of appearance of the parties. The parties are directed to appear before the Industrial Court on 04/08/2025. 14. Rule is made absolute in the aforesaid terms. No order as to costs. (SACHIN S. DESHMUKH, J.) Wadkar