THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Writ Petition No. 18557 of 2001 Order: Aggrieved by the orders dated 16.04.2001 passed by the 2nd respondent-Industrial Tribunal-II, Hyderabad, in I.D. No.80 of 2000 (Old I.D. No.323 of 2000), the petitioner filed the present writ petition. The brief facts of the case are as follows. The petitioner was appointed as a Conductor on 27.09.1977 in the 1st respondent- APSRTC. He was issued a charge sheet on 22.12.1994 with the following charges. “For unauthorized absent for duties for four days i.e., 10.09.1994, 13.09.1994 (without intimation or prior sanction of leave; for unauthorized absent for duties for two days from 17.11.1994 to 18.11.1994 without intimation or prior sanction of leave for irregular attendance during the period from 17.11.1994 to 15.12.1994 by being not available for duty for 16 days.” The petitioner submitted his explanation to the said charge mainly contending that he was sick. Having not satisfied with the same, departmental enquiry was ordered. During the course of departmental enquiry, no documents were marked and considering the evidence of the management witnesses the Enquiry Officer came to the conclusion that the charges leveled against the petitioner were proved. Basing on the report of the enquiry officer, the first respondent passed orders removing the petitioner from service on 22.06.1995. Challenging the same, the petitioner raised an industrial dispute. The stand of the first respondent before the Labour Court is that the petitioner failed to submit his explanation to the first charge sheet and submitted explanation to the charge sheet issued later. It is also contended that the petitioner was absenting from duties very frequently as mentioned in the charge sheet. The main contention of the learned counsel for the respondent is that on earlier occasions annual increments of the petitioner were deferred on six times and once he was removed from service and subsequently reinstated as per the award of the Labour Court and even after awarding punishment of removal again he indulged in unauthorized absenteeism. It is not in dispute that the petitioner produced a medical certificate. According to the petitioner he fell ill and had taken treatment from Tandur hospital and that he was admitted in the hospital on 01.12.1994 and he produced a certificate from the Doctor of Tandur hospital and in spite of his producing certificate, absent was marked by the duty controller. The medical certificate issued by the Doctor reveals that the said certificate was issued by a Doctor of Government Hospital, Tandur, stating that the petitioner was treated from 01.12.1994 to 15.12.1994 for fever and low B.P. It has to be seen that the petitioner was referred by the Depot Manager to the APSRTC Hospital, Tarnaka, which gave him fitness certificate. Merely because the details of the desease were not mentioned in the medical certificate the Labour Court appears to be not justified in rejecting the same. When the petitioner produced a medical certificate from the competent Government Doctor and when he was referred to the APSRTC hospital for a fitness certificate by the first respondent himself it appears that the authorities were not justified in holding that the petitioner was not sick. The record produced during the course of enquiry reveals that the petitioner was really suffering from ill-health and he could not attend the duties. It has to be seen that the contention of the respondent that on earlier occasion also the petitioner was absent pertains to a period of about a decade ago. That cannot be taken as a ground to punish the petitioner after a period of 10 years. Thus, it is clear that the punishment awarded to the petitioner is grossly disproportionate to the misconduct, if any proved. In fact in view of the medical certificate produced from the Government Hospital, Tandur, no misconduct is proved. Accordingly, the writ petition is allowed setting aside the impugned removal order. The first respondent-APSRTC is directed to reinstate the petitioner into service with continuity of service. At this stage, learned counsel for the petitioner submitted that since the petitioner was a Conductor he is not gainfully employed anywhere and he has no landed property and he has no means of income and all these years he suffered a lot, hence back wages may be awarded. On the other hand, learned counsel for the first respondent-APSRTC submits that unless the petitioner proves that he is not gainfully employed anywhere he is not entitled for the back wages. I do not think that it is justified to enquire into the matter whether the petitioner was gainfully employed or not at this stage after lapse of 15 to 20 years. However, having regard to the facts and circumstances of the case and having regard to the submissions made by both the counsel, the ends of justice would be met if 20% of back wages is awarded to the petitioner. ___________________ B. CHANDRA KUMAR, J. Date: 03.12.2010 Nsr