HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 27650 OF 2009
ORDER:
This Writ Petition is filed to quash the Award dated 25.07.2007 in I.D.No. 132 of 2006 on the file of Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad insofar as not granting back-wages to petitioner.
2. Petitioner joined as Driver in the Corporation on 09.02.1988 and his services were regularised with effect from 01.03.1989. While he was working in the 2nd respondent depot, a charge was framed for having consumed liquor while performing duty on Uppal-Vijayawada special service bus bearing No. AP 11Z 5196 on 10/11.12.2005 which constitutes misconduct under Regulation 28(xxi) and (xxxi) of APSRTC Employees (Conduct) Regulations, 1963. Domestic enquiry followed and he was suspended from service which ultimately resulted in removal by the 2nd respondent vide order dated 01.04.2006. After availing the remedies of Appeal and Revision unsuccessfully, petitioner raised the subject Industrial Dispute.
The case of the petitioner is that he parked the bus on platform No.6 at Imliban Bus station, Gowliguda. At that time, bus was packed with 60 passengers and it was a night service. While so, two passengers asked him to stop the bus at 2 Dilsukhnagar and Choutuppal for which he replied that since it was express service there were no stops at Dilsukhnagar and Choutuppal. It is his further case that he chewed zarda pan in order to avoid sleep while driving the vehicle, then the bus station manager came to him that there was complaint of consuming alcohol. He disputed the same. The complaint of petitioner is that while serving the charge sheet, statements recorded during preliminary enquiry and copy of the complaint were not furnished. It is his further grievance that though Osmania General Hospital is so near to I.B.S., he was not referred to the said hospital in order to find out the alleged drunkenness.
The Labour Court though held that there is no evidence in proof that petitioner consumed liquor and that he was in intoxication, denied back wags on the ground of 'no work no pay'.
3. The Corporation in its counter stated that while operating the service No. AP 11Z 5596, petitioner was found in intoxicating condition on 10/11.12.2005 and he was not in a position to drive the bus. He was immediately directed to security branch MGBS and breath analyser test was conducted in front of SASI, caretaker of MGBS and service conductor G. Buchaiah, and informed that petitioner consumed liquor and he was not in a position even to submit his statement. Therefore, Assistant 3 Manager (Traffic) detained the bus and withdrawn the driver from service. The Enquiry Officer gave report together with the statement recorded during the enquiry to petitioner and asked for his remarks. Petitioner denied the charge but as per the report of ASSI of MGBS who conducted breath analyser test, the alarm gave sound indicating 130 points. It is evident from the deposition given by Sri Rama Rao that a complaint has been received from passengers regarding petitioner with bus No. 5596 that he was in a drunken condition. After conducting enquiry, petitioner was removed from service. In I.D.No. 132 of 2006, Labour Court directed Corporation to take petitioner into service as driver with continuity of service and all other attendant benefits but without back-wages. Pursuant to the Award, petitioner was reinstated into service and increment was fixed on revised pay scales 2005 as Rs.7995+35 as on 08.12.2007, it may be reduced as Rs.7545+35 as Senior Law Officer vide letter dated 11.02.2009
4. Learned counsel for petitioner Sri V. Narsimha Goud submits that Labour Court ought to have granted back- wages also because the principle of 'no work no pay' does not apply to the present case as petitioner was illegally prevented from discharging his duties by the respondent herein. In fact, petitioner specifically pleaded before the Court that he remained unemployed from the date of removal and he could not get any employment in spite of best efforts. He relies on the judgment of 4 the Hon'ble Apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya 1.
5. Learned Standing Counsel submits that petitioner is not entitled to back wages as the breath analyser test indicates 130 points and the same was witnessed by Sri Rama Rao, Care taker of MGBS and service conductor. According to him, the Labour Court has already shown lenience on petitioner and granted reinstatement with continuity of service and all attendant benefits. Hence, the same cannot be interfered with.
6. The limited grievance of petitioner is that though Labour Court held that the present circumstances are not sufficient and moreover there is no past record that delinquent is a habitual drinker, denied wages on the ground of 'no work no pay'. Per contra, the Corporation's case is that as per the report of ASSI of MGBS, who conducted breath analyser test on petitioner and reported that machine gave alarm sound indicating 130 points. Basing on breath analyser test, petitioner was found to be in intoxicating condition while on duty which has been witnessed by Sri Rama Rao, Caretaker of MGBS and service conductor. It is evident from the deposition given by Sri Rama Rao, care taker of MGBS that a complaint was received from passengers that petitioner with bus No. 5596 was in drunken condition as he was not speaking normally and behaved with arrogance. In this regard, 1 (2013) 10 SCC 324 5 the case of petitioner is that he was chewing Baba pan gutka and smell is emanating like alcohol, however, respondent has not sent him for medical check up to Osmania Hospital which is nearer to MGBS. The Labour Court while dealing with the case has taken a lenient view in respect of the driver though there were specific averments against him by way of statements of caretaker and service conductor. It went on observing that even assuming that he consumed anything, though his case was that he was chewing only zarda pan, which emanates smell like that, it is common in their duties to chew such things while performing night and double duties to control their mind and to avoid sleep and that is not a wrong or irregular. There is no ban or prohibition to that effect and that cannot be taken adverse to the drivers, moreover it is nothing but additional precautions taken by the drivers while performing their duties. The findings of the Labour Court in respect of the act committed by the driver shocks the conscience of this Court. Petitioner being the driver of a bus run by the State- owned Corporation is expected to be more careful and cautious while on duty which admittedly was packed with sixty passengers. The failure to do so may claim the lives of the passengers which ultimately casts a stigma on the Corporation. This Court is therefore, in total disagreement with the observations made by the Labour Court.
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7. At this stage, learned counsel for petitioner requests that at least 75% back-wages be awarded. Learned Standing Counsel seriously opposes the said request. In this factual backdrop, it is to be seen, petitioner pleaded that he was not gainfully employed during the subject period. It is never the case of the Corporation also that he was employed elsewhere. To strike a balance, this Court is inclined to grant 40% back-wages.
8. The Writ Petition is accordingly, allowed in part directing the Corporation to grant 40% back-wages for the period in which petitioner was out of service. No order as to costs.
9. Pending miscellaneous petitions, if any, shall stand closed.
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NAGESH BHEEMAPAKA, J 06th October 2023 ksld