IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 13635 of 1999 Between: The Depot Manager, A.P.S.R.T.C., Anakapally Depot, Visakhapatnam District. ..... PETITIONER AND 1 The Industrial Tribunal-cum-Labour Court, Rep. by its Presiding Officer. Visakhapatnam. 2 Panthula Satynarayana Murthy, S/o Late Gopala Swamy, C/o. P. Padmavathi, D.No. 2/21, SBI New Colony, Yelamanchili, Visakhapatnam Dist. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to may be pleased to issue a Writ, order or direction, particularly one in the nature of Writ of Certiorari, calling for the records relating to ID No. 101/96 on the file of Ist Respondent and quash the award dt.9-1-1999 and the said I.D. is published in G.O.Rt.No.394 dt.10-3-1999 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the Circumstances of the case. Counsel for the Petitioner:MR.Y.VIVEKANANDA SWAMY Counsel for the Respondent No.: MR.A.SRINIVASA SARMA The Court made the following : ORAL ORDER: This writ petition is filed questioning the award passed in I.D.No.101 of 1996 dated 9.1.1999 on the file of the Industrial Tribunal-cum-Labour Court, Visakhapatnam. Petitioner is management and second respondent is workman. It appears, respondent-workman while working as Conductor of Anakapalli Depot, was charge-sheeted for his irregular attendance for the period from 14.4.1994 to 14.3.1995. The charge reads as under: “For having irregular attendance during the period from 14.4.1994 to 14.3.1995 by way of absenting/reporting sick frequently i.e. nearly 7 months in continuous of 11 months as mentioned in the allegations which constitutes misconduct under Regulation 28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963.” After conducting a detailed enquiry into the said charge, the respondent-workman was removed from service. Aggrieved thereby, he raised a dispute under Section 2-A(2) of the Industrial Disputes Act, 1947 before the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.No.101 of 1996. It was the contention of the respondent-workman that absolutely there was no misconduct on his part. In fact, he had submitted sick certificate for the period from 27.4.1995 onwards. He was directed to report to Superintendent and Chief Medical Officer, Tarnaka Hospital, Hyderbad on 4.5.1995 for medical check-up and certification of his health. Accordingly, he attended the APSRTC hospital, Tarnaka, Secunderabad and he was given fitness certificate to discharge the duties from 17.5.1995 onwards. It was his further contention that the sick certificate issued by APSRTC hospital and private sick certificates filed by him were not taken into consideration while considering his case as to absenteeism. Neither the enquiry was properly conducted nor there was any necessity of removing him from service, since the charges leveled against him are trivial in nature. The petitioner-management filed a detailed counter denying the allegations made by respondent- workman and stated that the enquiry was properly conducted and full and fair opportunity was given to the workman to participate in the enquiry and the workman does not deserve any sympathy from the Court since absenteeism is a matter of record. Neither any oral evidence was adduced on either side nor any documents were marked on behalf of workman, but on behalf of management, Exs.M1 to M16 were marked. After a detailed consideration of the entire material placed before it, the Labour Court came to the conclusion that sickness is not within the knowledge of management and the workman had taken treatment at R.T.C. Super Speciality Hospital at Taranaka, Secunderabad. Therefore, the management ought not to have imposed the harsh punishment of removal from service. In other words, the punishment imposed is definitely on high side. Imposition of disproportionate punishment itself amounts to victimization. In view of those circumstances, the punishment of removal from service was set aside and directed the management to reinstate the workman with continuity of service and with 50% back wages. Aggrieved by the same, the present writ petition is filed. The learned counsel for petitioner-management states that absenteeism is a matter of record and neither the workman underwent treatment at RTC Tarnaka Hospital, Secunderabad nor produced any sick certificate to that effect. The allegations made by him are all false and incorrect. The Labour Court has not properly appreciated the same and came to wrong conclusions. Per contra, the learned counsel for respondent-workman supported the award passed by the Labour Court and submitted that the award passed by the Labour Court does not call for any interference by this Court under Article 226 of the Constitution of India. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned award and other material made available on record. From the above, it is clear that absolutely there was no evidence before the Labour Court to say that the workman was sick and was suffering with delicate health condition and the same was within the knowledge of management. Further, it appears the respondent- workman had suffered removal orders twice for his unauthorized absence and more than 10 times, he was awarded with punishments for his unauthorized absence. Under those circumstances, I am of the opinion that the Labour Court ought not to have interfered with the removal order passed by the petitioner-management. Be that as it may, the Labour Court while exercising its power under Section 11-A of the I.D. Act, in its discretion directed reinstatement of the respondent-workman with continuity of service and with 50% back wages. I am of the view that the discretion exercised as per Section 11-A of the I.D. Act is arbitrary and illegal. Even while exercising its power, the Labour Court ought to have simply granted reinstatement with continuity of service, but without any back wages and without attendant benefits. In a case of absenteeism, the question of granting back wages does not arise. Therefore, to meet the ends of justice, the award passed by the Labour Court is modified to the following effect: “The petitioner management is directed to reinstate the respondent-workman with continuity of service, but without any back wages and without any attendant benefits. It is needless to mention that the petitioner- management is at liberty to recover 50% of the amounts deposited in pursuance of the interim order passed by this Court on 20.10.2000 from the respondent-workman ”. The writ petition is accordingly disposed of. No order as to costs. ____________ C.V.RAMULU, J Date: 17.4.2008 DA THE HON'BLE MR JUSTICE C.V.RAMULU W.P.No.13635 of 1999 17.4.2008