HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 24299 OF 2011
ORDER:
This Writ Petition is filed seeking to quash the impugned Award dated 04.02.2010 made in I.D.No. 144 of 2009 on the file of the Labour Court-III, Hyderabad insofar as not granting back wages as arbitrary, unjust and in violation of Articles 14, 16 ad 21 of the Constitution of India. A consequential direction is sought to pay the benefits which would arise on disposal of Writ Petition No. 24299 of 2011.
2. It is submitted that petitioner died during pendency of Writ Petition, hence, his wife Smt. G. Bhagya Lakshmi was brought on record as his legal representative vide order dated 28.06.2023 in I.A.No. 01 of 2018.
3. The case of workman is that he joined the service of Corporation on 27.04.1983 and his services were regularised with effect from 31.10.1983. While he was working under the control of the 3rd respondent, he was suspended from service on 03.05.2006 on the allegation that he performed duty in drunken condition on 27.03.2006 on route No. 2J which was detected at about 10.05 hours at Jiyaguda by the checking officials of HES/Nirmal and for having absconded from the spot Jiyaguda when DM/BKP, AM(T)/BKP along with a driver who attended the spot where check 2 took place which constitutes misconduct in terms of Regulation 28(xxxii) of APSRTC Employees (Conduct) Regulations, 1963. Departmental enquiry followed. Basing on the enquiry report, he was removed from service. He unsuccessfully preferred Appeal and Revision, thereafter, raised I.D.No. 21 of 2008 on the file of the Labour Court-I, Hyderabad which was transferred to the Labour Court-III, Hyderabad and renumbered as I.D.No. 144 of 2009. Though Labour Court held that charges levelled against him were not proved, did not grant back wages for no valid reasons. Hence, the Writ Petition.
4. In the counter, it is stated that during his service in the Corporation, petitioner was inflicted with numerous punishments such as postponement of increments on three occasions for having involved in accident cases. While performing duty on 27.03.2006 on route No. 2J at 18.30 hours, a check was exercised by the checking officials and found that he was driving the bus in drunken condition and absconded from the place. The checking officials informed AM(T)/BKP regarding the same. The AM(T) along with a driver went to Jiyaguda point, at that time, service driver was not there. Other driver was arranged who brought the bus to the depot. The petitioner was placed under suspension duly issuing a charge sheet on 03.05.2006, however, he did not choose to submit his explanation to the charge sheet though sufficient time was granted. Finally, on 17.05.2006, he 3 submitted explanation. During the course of enquiry also, petitioner was given all the opportunities. After receiving the enquiry report and evidence available on record, petitioner was asked to submit his objection / comments. He submitted his comments which are not convincing, hence show cause notice was issued and he was removed from service by order dated 24.10.2006. It is submitted that on perusing the entire material, the Labour Court held that enquiry proceedings are not valid therefore, the petitioner had every opportunity to produce appropriate evidence to defend his case before the Labour Court. It is submitted that contention of petitioner that he could not get any employment during the removal period is denied. The petitioner did not lead any evidence though had an opportunity before the Labour Court, except making the statement, therefore, the Labour Court rightly denied back wages. The petitioner is not entitled to any back wages on the principle 'no work no pay', hence, the Writ Petition is liable for dismissal.
5. Learned counsel for petitioner submits that though there is no evidence in support of the charges and no documents were produced, the Enquiry Officer considered many documents behind the petitioner which is in violation of the principles of natural justice. If termination from service is shown to be illegal and the employee / workman concerned was regularly appointed and had put in substantial service, he would be entitled to full 4 backwages subject to his not having been gainfully employed after his wrongful termination from service, is what contends the learned counsel. In support thereof, he cited the judgment of the Division Bench of this Court in Depot Manager, APSRTC, Guntur District v. Ch. Suresh Babu 1.
6. Learned Standing Counsel Sri Thoom Srinivas submits that petitioner is not entitled to backwages on the ground 'no work no pay', hence, the Award impugned need not be interfered with as the Labour Court had already shown lenience towards workman.
7. The labour court being the final court of facts came to a conclusion that petitioner is entitled to reinstatement into service. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. Fortunately, reinstatement of petitioner is not in dispute in this Writ Petition. Hence, this Court is not inclined to go into that aspect.
8. As regards awarding back-wages is concerned, whenever there is interference with the order of termination or 1 2019(2) ALD 264 (DB) 5 retirement, full back wages were the natural corollary. The Hon'ble Supreme Court in a catena of judgments held so. At the same time, a workman has no right to claim back-wages from his employer as of right only because the court has set aside dismissal order in his favour and directed his reinstatement in service. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from service he was not gainfully employed anywhere and had no earning to maintain himself or /and his family. The employer is also entitled to prove it otherwise against the employee, namely, that employee was gainfully employed during the relevant period and hence, not entitled to claim any back-wages. Initial burden is, however, on the employee. In the absence of the same, payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.
9. At this juncture, learned counsel for petitioner submits that workman passed away and in view of the judgment of the Hon'ble Supreme Court in Rajasthan State Road Transport Corporation v. Phool Chand 2, requests that petitioner may be granted back-wages.
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AIR 2018 SC 4534 6
10. In view of the above, having regard to facts and circumstances of the case, such as period and money spent in litigation by the deceased workman and on his death by his wife, this Court considers it just and proper in the interest of justice to award back-wages to petitioner No.2 at 75%.
11. The Writ Petition is accordingly allowed in part. The respondent Corporation is directed to award 75% back-wages to petitioner No.2 for the period in which workman was out of service. No costs.
12. Pending miscellaneous petitions, if any, shall stand closed.
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NAGESH BHEEMAPAKA, J 09th September 2023 ksld