THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 24785 OF 2006 O R D E R: The 1st respondent (for short “the respondent”) is employed as a Leading Hand, in the Chittoor Depot of APSRTC. A charge sheet, dated 5.11.2002, was issued to him, alleging that he remained unauthorisedly absent for 3 days, on 2nd, 3rd and 4th November 2002, and that he did not attend to duties for a fairly long period, though applied for leave of one category, or the other. The respondent submitted his explanation, and thereafter, an enquiry officer was appointed. In his report, dated 28.1.2003, the enquiry officer held the charges against the respondent, proved. After issuing a notice, proposing the punishment of removal, the petitioner passed an order, dated 15.3.2003, directing removal of the respondent from service. The appeal preferred by the respondent was rejected by the Divisional Manager, and thereupon he moved the Labour Court, Anantapoor, by filing I.D.No.44 of 2004, under Section 2-A(2) of the Industrial Disputes Act. The Labour Court passed an award, dated 18.4.2006, setting aside the order of removal and directing reinstatement of the respondent, with full back wages, continuity of service, and attendant benefits. The petitioner challenges the award. Learned Standing Counsel for the petitioner submits that the respondent is a habitual absentee, and on account of his continuous absence for months together, maintenance of the vehicles has been seriously affected. He contends that though the charge may appear to be trivial, the misconduct of the petitioner is serious one. Learned counsel for the respondent, on the other hand, submits that the allegation under Charge No.1 is absence for 3 days, and Charge No.2 relates to the period, which was covered by leaves of one category, or other. He submits that the entitlement of an employee to avail leave, cannot be denied, and at any rate, it cannot constitute the basis for disciplinary action. The two charges framed against the respondent, read as under: “Charge No.1: For having absented for your duties unauthorisedly 2.11.2002 to 4.11.2002 resulted the maintenance of vehicles affected and the services were dislocated and much inconvenience caused to the traveling public and loss of revenues to the Corporation, which constitutes misconduct under Regulation 28 (xxvii) of APSRTC Employees (Conduct) Regulation 1963. Charge No.2: Due to your irregular attendance i.e. from July 2002 you are under sick for 40 days, leave for 6 days and absent for one day resulted the maintenance of vehicles work was affected which constitutes misconduct under Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963.” After conducting domestic enquiry, the petitioner removed the respondent from service. The Labour Court has set aside the order of punishment, and restored the respondent to his original position in the service. It is a typical case, where neither the respondent can be said to be guilty of any grave misconduct, warranting the punishment of removal, nor it can be said that there was no fault of the said employee. Remaining absent, even without any leave, for a period of three days cannot, by itself, be treated as a serious act of misconduct. Further, assuming that the respondent did not offer valid explanation, it must not entail in the punishment of removal. In the second charge, the respondent is accused of remaining absent continuously, for many days. However, there is no allegation that the absence of the respondent was without any leave. Even if there was no basis for the respondent to avail the leave continuously, for a long time, necessary action ought to have been taken, at the relevant point of time. Once the period of absence was treated as on leave of different categories, the petitioner cannot impose the penalty of removal from service. At the same time, the irregularity, on the part of the respondent, cannot be ignored. Being an employee on the technical side, his absence would certainly tell upon the maintenance of the busses and the corresponding hardship to the Corporation. This court is of the view that a decent balance can be stuck, in case, the respondent is denied back wages to the extent of 25%, while upholding the award. Hence, the writ petition is partly allowed, upholding the award passed by the Labour Court, in I.D.No.44 of 2004, but restricting the back wages to the extent of 75%. There shall be no order as to costs. _______________ 10th July 2008 PAN