HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.600 of 2002 (M/S) Chairman U.P. State Road Transport Corp. & Others … Petitioners Vs Presiding Officer and others … Respondents Hon’ble Tarun Agarwala, J. Heard Mr. Ashish Joshi, the learned counsel for the petitioners. List has been revised. No one is present for the respondent workman. The record reveals that the counter affidavit has not yet been filed. The workman respondent no.2 was a driver in the petitioner corporation and absented himself without leave for 83 days. On his return, he has given his explanation that his hand was burnt due to which he could not join his duties. When a chargesheet was issued to respondent workman, he replied that he had to take leave because his mother was ill. On the basis of the enquiry report, the disciplinary authority passed an order terminating the services of the workman. The workman, being aggrieved, raised an industrial dispute which was referred to the labour court for adjudication under Section 4K of the Industrial Disputes Act. The terms of the reference is somewhat like this :- “Whether the employer was justified in terminating the services of the workman w.e.f. 07.08.1997, if not to what relief is the workman entitled to?” The labour court, after considering the evidence on record gave an award directing reinstatement of the workman with continuity of service and with full backwages and substituted the order of termination by stoppage of one increment for one year. -2- The petitioner Corporation, being aggrieved by the said award, has filed the present writ petition. Having heard the learned counsel for the parties, the court finds that the punishment awarded by the petitioner was excessive and did not commensurate with the misconduct, especially when nothing has come on record to show that the workman was a habitual absentee. Merely because the workman had absented himself without leave does not mean that the employer is enjoined to pass an order of penalty of dismissal. In the light of the aforesaid, the award of the labour court directing the reinstatement does not suffer from any error of law. The order of the labour court substituting the order of termination by the order of stoppage of one increment of one year was perfectly justified. However, in the absence of any affidavit being filed that the workman was unemployed during the period in question, the labour court was not justified in granting full backwages and to that extent, the award of the labour court cannot be sustained. In the result, the writ petition is partly allowed. The award of the labour court is modified to the extent that the workman would not be entitled for backwages from the date of termination to the date of the passing of the award. (Tarun Agarwala, J.) Dated 14.12.2011 LSR