Full Judgment
2. Respondent is a driver in the petitioner's Corporation. On 19.1.1999, the petitioner was transferred from Depot - 2 to Depot - 4. Consequent to transfer, the respondent failed to report for duty and continuously thereafter remained unauthorizedly absent. On 23.4.1999 a call notice was issued to the respondent calling upon him to report for duty. Respondent Submitted his reply stating that he is suffering from Jaundice and that he has suffered an injury to his wrist. Thereafter, petitioner issued articles of charges, enquiry was held and on 25.7.2000 an order of dismissal came to be passed. Aggrieved by thk. order of dismissal respondent raised a dispute before the Labour Court in I.D.No.209/2000 under Section 10(4-A) of the Industrial Disputes Act, 1947 (for short 'the Act'). On the basis of pleadings, the Labour Court framed the following three issues for its consideration:
i) whether domestic enquiry conducted against the first part is fair, proper and valid?
ii) whether the second party is justified in dismissing the first party from service?
iii) To what relief, first party is entitled?
3. The Labour Court held the preliminary issue relating to domestic enquiry in affirmative stating that it is fair and valid. Thereafter the respondent examined himself as WW.1 on the question of victimization. The Labour Court on reappreciation of the material on record, held that respondent remained unauthorized absent from 19.1.1999 as proved. Before the Labour Court petitioner has not pressed the second charge relating to habitual absence on earlier occasions. The Labour Court by accepting the explanation of the respondent that he was suffering from Jaundice and that there was an injury to his wrist held that the extreme penalty of dismissal as shockingly disproportionate. Consequently, under the impugned award the Labour Court set a side the order of dismissal, directed reinstatement of respondent with continuity of service or in the alternative to give any lesser job with 20% back wages. Hence this writ petition.
4. Heard arguments on both the side and perused the entire writ papers.
5. The only grievance of the petitioner is with regard to the interference by the Labour Court with the order of penalty of dismissal by exercising discretion under Section 11A of the Act. The material on record discloses that the respondent before 19.1.1999 requested the petitioner Corporation to provide him a lesser job on the ground that there is an injury to his wrist and not capable of driving the vehicle. Further the Labour Court noticed that subsequent to 19.1.i99t) also the respondent was suffering from illness and physically was not fit to attend to his duly. The Labour Court by taking into consideration the nature of charge, length of service, age and the physical disability of the respondent, rightly exercised the discretion under Section 11A of the Act The discretion so exercised can neither be said arbitral-)' nor illegal. I find no justifiable ground to interfere with the finding of the Labour Court.
6. Admittedly, from 19.1.1999 till the date of award, the respondent has not worked, in the petitioner's establishment. Absolutely there is no contribution from the respondent to the petitioner Corporation. On the other hand, the petitioner Corporation is a public sector undertaking. Therefore, the grant of 20% back wages by the Labour Court is not just and proper. To this extent the impugned award requires modification. For the reasons stated above, the following:
i) Writ petition is partly allowed.
ii) The impugned awared in so far as it relates to grant of 20% back wages is hereby set a side.
iii) Remaining all other aspects the impugned award remains in tact and undisturbed.
iv) Pursuant to the interim order granted by this court, respondent was reinstated in service in alternative job and he was paid the last drawn wages. It is obligatory on the part of the petitioner to pay the current wages. Therefore, from the date of reinstatement in the alternative job, petitioner are liable to pay current wages to the respondent.