JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Munshaw, learned advocate for the petitioner - Gujarat State Road Transport Corporation [hereinafter referred to as "the corporation"] and Mr. Rathod, learned advocate for the respondent - workman. 2. In this group of two petitions, the workman and the corporation have challenged the same award dated 19.2.2013 in Reference (LCH) No. 14 of 2008 whereby the learned Labour Court directed the corporation to pay 25% backwages to the workman from the date of termination until the date on which the concerned workman reached the age prescribed for superannuation. 3. So far as factual background is concerned, it has emerged from the record that the concerned workman, who at the relevant time, was employed and working as driver with the corporation started remaining absent w.e.f. 19.10.1998. He remained absent without leave and without any intimation. The corporation forwarded intimations/reminders asking the workman to report for duty, however, the workman did not start reporting for duty. Therefore, the corporation issued charge sheet dated 4.12.1998 which was followed by departmental inquiry. On conclusion of the inquiry, the Inquiry Officer submitted his report dated 10.3.1999. According to the report of the Inquiry Officer, the workman remained absent even during the proceedings of the domestic inquiry and despite reminders, he did not attend the inquiry proceedings and that therefore, the Inquiry Officer was constrained to conduct inquiry in absence of the concerned workman. In his report, the Inquiry Officer also recorded his conclusion on the basis of the material on record that the charge levelled against the workman is proved. The disciplinary authority considered the report and the disciplinary authority also agreed with the findings of the Inquiry Officer and that therefore, passed order dated 23.3.1999 terminating the service of the workman. The said order dated 23.3.1999 terminating service of the workman was carried in appeal, however, the appellate authority rejected the said departmental appeal. The workman therefore raised industrial dispute. The appropriate government passed order of reference and referred the dispute for adjudication. The reference was registered as Reference (LCH) No. 14 of 2008. 3.1 Before the learned Labour Court, the concerned workman filed his statement of claim and contended that while he was on duty on 18.10.1998, he received message about sudden demise of his father and on receiving such message, he was shocked and he fell down and received injury in his back. 3.1 Before the learned Labour Court, the concerned workman filed his statement of claim and contended that while he was on duty on 18.10.1998, he received message about sudden demise of his father and on receiving such message, he was shocked and he fell down and received injury in his back. He then proceeded to attend the last rites of his father, however, because of the injury which he received, he could not immediately resume his duties. The workman also claimed that when he received the intimation from the corporation, he had submitted his reply claiming that when his heath improves, he will resume the duty with necessary medical certificate. According to the workman's allegation, his reply or explanation and medical certificate have not been taken into account and the corporation arbitrarily terminated his service. 3.2 The fact that the concerned workman did not attend the inquiry proceedings is not disputed. 3.3 The corporation opposed the reference and filed written statement wherein the corporation mentioned relevant facts, including the fact that the workman had started remaining absent without leave or any intimation from 19.10.19898 and remained absent until 15.1.1999. The corporation also claimed that the workman did not attend the departmental inquiry proceedings as a result of which, the Inquiry Officer had to conduct the inquiry in absence of the workman. The corporation also claimed that according to the report submitted by the Inquiry Officer, the charge levelled against the concerned workman vide charge sheet dated 4.12.1998 are proved and that therefore, the disciplinary authority after considering the past record of the workman, passed the order dated 23.3.1999 and terminated the service of the workman. The corporation claimed that in past also, the concerned workman had remained absent on various occasions, however, in particular case when the workman/driver remained continuously absent for more than two months and that too without any intimation and without permission, the action of terminating his service is justified. However, the learned Labour Court found that the decision of the corporation is harsh and the learned Labour Court considered it appropriate to exercise power under Section 11(A) and in exercise of the power under Section 11(A), the learned Labour Court passed the impugned directions. 4. Mr. However, the learned Labour Court found that the decision of the corporation is harsh and the learned Labour Court considered it appropriate to exercise power under Section 11(A) and in exercise of the power under Section 11(A), the learned Labour Court passed the impugned directions. 4. Mr. Munshaw, learned advocate for the corporation, contended that when the learned Labour Court found that the inquiry was conducted in fair manner and when the learned Labour Court also found that the findings and report of the Inquiry Officer are not perverse and when the learned Labour Court also found that the charge related to continuous absence from duty without intimation and without permission is proved and that the workman had remained continuously absent for more than two months, the learned Labour Court ought not have directed the corporation to pay 25% backwages to the workman for the period from the date of termination until the date when the workman attained age of superannuation (May-2015). He also submitted that the learned Labour Court has, even after holding that the charge is proved, failed to impose any penalty though the learned Labour Court itself observed that the award for some penalty in nature of stoppage of increment ought to have been passed, however, at the end of the award, the learned Labour Court lost sight of the said observation and did not impose any penalty and that therefore, the award is bad and unsustainable in law. He also submitted that the petition filed by the workman claiming 100% backwages deserves to be dismissed. 5. Per contra, Mr. Rathod, learned advocate for the workman, submitted that the workman received message of sudden demise of his father and that therefore, he left the office to attend last rites after his father's death and since he had received injury, he was not able to report for duty and that therefore, the corporation should not have taken such harsh step and should not have terminated the service of the workman. He also submitted that the workman had submitted medical certificate issued by Civil Surgeon, Himatnagar which justify his absence from duty. He also submitted that the workman had submitted medical certificate issued by Civil Surgeon, Himatnagar which justify his absence from duty. He submitted that on account of his ill health, he could not attend the proceedings of the inquiry, however, in view of the fact that he had suffered injury and was not in good health during the period in question, the decision of the corporation to terminate the service of the workman despite such facts and circumstances is unjustified and rightly set aside by the learned Labour Court. He submitted that when the learned Labour Court found that the employer's action was harsh, then in that event, the learned Labour Court ought to have awarded full backwages, however, the learned Labour Court committed error in awarding only 25% backwages and that therefore, the petition filed by the workman may be allowed and the award to that extent may be modified. 6. I have considered the submissions by learned advocate for the petitioner corporation and learned advocate for the respondent workman. 7. From the material on record, it has emerged that the concerned workman remained absent from duty on and from 19.10.1998 and that the said fact is not in dispute. The fact that for the said conduct of the workman a charge sheet was issued and departmental inquiry was conducted is also not in dispute. It is also not in dispute that domestic inquiry was conducted but the inquiry had to be conducted in absence of the workman because the workman not only did not report for duty, but also did not remain present before the Inquiry Officer. It is also not in dispute that the learned Labour Court held that the inquiry was conducted in fair and legal manner. It is also not in dispute that the Inquiry Officer held in his report that the charge of absenteeism without intimation and without permission is proved. It is also not in dispute that the workman remained absent from duty on and from 19.10.1998 until 15.1.1999. At the same time, it is also not in dispute that when the concerned workman reported for duty on 15.1.1999, he had gone with, and submitted, the medical certificate and the Inquiry Officer's report was submitted after 15.1.1999 (i.e. after the certificate was submitted) and the disciplinary authority took the decision with regard to the disciplinary action on 23.3.1999 (after the certificate was submitted). Thus, at the time when the Inquiry Officer's report was submitted and when it was considered by the disciplinary authority but before the termination order came to be passed, the medical/fitness certificate submitted by the concerned workman was available with the disciplinary authority. It is pertinent that though the said medical/fitness report or any request seeking leave was not submitted before 15.1.1999 and/or the said certificate was not submitted during the proceedings of the inquiry or even before 4.12.1998 (i.e. when charge sheet was issued) but the said report was undisputedly submitted on 15.1.1999 and that therefore, it was available (for consideration) with the disciplinary authority before the said authority took the final decision and passed order imposing penalty. In this view of the matter, the said report should have been taken into account by the disciplinary authority before taking decision as regards the quantum of penalty. It is true that the inquiry is held legal and the charge about absence without permission is proved in present case, however, the fact that the concerned workman was suffering from ill-health and the said aspect is certified by the Civil Surgeon (through the medical/fitness certificate issued by him) and that therefore, the said aspect should have been taken into account by the disciplinary authority and the delay caused by the concerned workman in submitting the medical/fitness certificate/report and information about his illness and absence should have been viewed in that perspective. 8. In light of the facts and circumstances discussed above, it cannot be disputed that the concerned workman remained absent from duty without permission for long duration of more than two months. 8.1 In background of such facts, the learned Labour Court has held that the action of the corporation is harsh and the penalty is excessive or unjustified. 8.2 It appears from the record that the said observation and conclusion is made by the learned Labour Court in light of the fact that the workman started remaining absent from duty after he received message of his father's sudden demise and after he received injury when he fell down upon receiving such news of sudden demise of his father and also in background of the fact that though after delay, the workman had submitted medical/fitness certificate. 8.3 Having regard to the reason of the absence, the learned Labour Court considered the penalty excessive. 9. 8.3 Having regard to the reason of the absence, the learned Labour Court considered the penalty excessive. 9. At the same time, it is also relevant to recall that the learned Labour Court itself has observed in the award that having regard to the proved misconduct, the punishment of dismissal is harsh, however, some penalty of stoppage of one or two increments should have been imposed. Meaning thereby, even according to learned Labour Court, the charge is proved. 9.1 It is also pertinent that even after making such observations and even after holding that inquiry is legal and charge is proved, the learned Labour Court failed to impose any penalty and passed the award directing the corporation to pay 25% backwages for the period from the date of termination until the date when the workman reached age of superannuation. 9.2 The denial of backwages is in view of the fact that the learned Labour Court found that the workman, who worked as driver with the corporation and possessed driving license for heavy vehicle, would not have remained unemployed during the period of proceedings before the learned Labour Court. 9.3 In this view of the matter, so far as the order of the learned Labour Court viz. not imposing any penalty is concerned, the said order, to the extent it does not impose any penalty whatsoever is concerned, is erroneous and unjust and cannot be sustained. 10. For the foregoing reasons and in light of the above discussed facts and circumstances, the award and final direction by the learned Labour Court deserves to be modified. Therefore, following order is passed:- 10.1 By way of penalty for remaining absent without leave, the respondent workman shall be visited with penalty of stoppage of two increments with future effect and the direction to pay backwages is modified and reduced to 15%. 10.2 So far as the period subsequent to the date of award is concerned, in view of the scope of the petition, it is not for this Court to pass any direction, however, it would be appropriate to clarify the fact that this Court had never granted any interim relief staying the operation of the award impugned in this petition and that therefore, the direction to reinstate the concerned workman remained in operation. 10.3 The amount payable in light of the award passed by the learned Labour Court as modified by this order, shall be paid as expeditiously as possible and preferably within eight weeks from today. With aforesaid observations and direction, present petitions stand disposed of. Rule is made absolute to the aforesaid extent.