HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 10726 OF 2012
ORDER:
This Writ Petition is filed by the Corporation challenging the order dated 03.03.2012 in E.P.No. 6 of 21010 in I.D.No. 150 of 1996 on the file of the Labour Court, Godavarikhani and to set aside the same as illegal and arbitrary.
2. The 2nd respondent was appointed as a Conductor in 1987 in the Corporation. He was suspended on the charge of cash and ticket irregularities. After conducting domestic enquiry, the charges levelled against the 2nd respondent were proved and vide order dated 11.10.1993, he was removed from service. Aggrieved thereby, the 2nd respondent filed I.D.No. 150 of 1996, wherein by Award dated 16.07.2005, the 1st respondent set aside the order of removal and directed reinstatement of the 2nd respondent with continuity of service and 50% back wages and also awarded Rs.5,000/- towards compensation for the pain undergone by him for the false charges framed by the TTIs.
Challenging the said order, the Corporation filed Writ Petition No. 4946 of 2006. This Court by order dated 23.07.2007 allowed the said Writ Petition in part upholding the Award of the Labour Court but setting aside the direction to pay 2 compensation of Rs.5,000/- to the 2nd respondent. According to the petitioners, 50% back wages was calculated and a sum of Rs.1,42,930/- was paid to the 2nd respondent. After accepting the said amount, the 2nd respondent filed E.P.No. 6 of 2010 before the 1st respondent. The Labour Court allowed the said Petition by order dated 03.03.2012 directing the petitioners to deposit the difference of 50% back wages from 27.05.1993 till 15.10.2005 (the date of suspension till the award became enforceable / final), delayed salary from 16.10.2005 to 25.11.2005 (30 days from the date of publication of award till reinstatement) and difference of salary from 26.11.2005 to till date (date of reinstatement to till date) into this Court by giving increments and revision in pay scales of RPS 1993-2010, after deducting the amount already paid to the 2nd respondent by 03.04.2012, failing which, the E.P. scheduled properties of petitioners 2 and 3 should be attached.
3. A counter-affidavit was filed by the 2nd respondent stating that the Corporation did not pay him the wages from 11.10.1993 as per the Award, therefore, he filed the Execution Petition. The allegation of the petitioners that he did not furnish the details of the claim is not true, untenable and devoid of truth. He was paid a sum of Rs.1,42,931/- but the said amount is not the full amount as per the Award. According to the 2nd respondent, the petitioners while calculating the amount had taken last drawn 3 wages but did not include increments and revised pay scale from time to time, which is contrary to the Award passed by the 1st respondent.
4. Learned Standing Counsel for the petitioners Sri Gaddam Srinivas submits that the Labour Court failed to see that the 2nd respondent has not furnished any detailed calculation memo to substantiate his claim regarding the amounts due to him, therefore, on this ground alone, it ought to have dismissed the Petition filed under Section 11(B) of the Industrial Disputes Act. He submits that the Labour Court erred in holding that since the 2nd respondent was directed to be reinstated into service with continuity of service and 50% back wages for the out of service period, the said 50% back wages cannot be calculated at last drawn pay of the 2nd respondent as on the date of his removal. The learned Standing Counsel places reliance on the judgment of the Hon'ble Apex Court in V.V.G. Reddy v. APSRTC, Nizamabad Region 1 and submits that the attendant benefits is in regard to a period for which the employee had been denied back wages; a person may be denied back wages which otherwise can be interpreted to mean that he would be entitled to claim the benefit of increments notionally. He further submits that in the case referred to above, the appellant has not been directed to be 1 AIR 2009 SC 1654 4 reinstated in service by reason of an Award holding that the order of termination was wholly illegal and thus void ab initio. The appellant being not in service during the period in question, in our opinion, would not be entitled to increment. In this case also, as the 2nd respondent was not in service during the period in question, he is not entitled to increment.
5. Learned counsel for the employee Sri A.K. Jayaprakash Rao supports the impugned order. He places
reliance on the judgment of the Hon'ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalya (D.Ed.) 2 to contend that the 2nd respondent is entitled to back wages. Paragraph 22 of the said judgment is relevant in this context which reads as under:
" The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These 2 (2013) 10 Supreme Court Cases 324 5 sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial / quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
He also places reliance on the definition of the word 'reinstatement'. In para 21 of the above judgment, it is held as under:
" The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol.2, 3rd Edn., the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word "reinstate" means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam- Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position) to restore to a previous effective state. As per Black's Law Dictionary, 6th Edn., "reinstatement" means:6
" To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."
6. Perused the material on record.
7. The main argument of the petitioners is that back- wages cannot be paid for the period for which the 2nd respondent was out of service and hence, 50% back-wages were calculated on the salary last drawn by him. Admittedly, in the order dated 23.07.2007 in Writ Petition No. 4946 of 2006 filed by the Corporation, this Court recorded that this is one of the rare cases, where the Labour Court itself was surprised about the conduct of checking officials and obviously for that reason was tempted to award damages, apart from granting the relief. The High Court cannot act as an appellate authority on the factual findings recorded by the Labour Court unless they are shown to be perverse. The Labour Court while deciding the E.P. observed that in the Award, it was held that the charges framed against the 2nd respondent are not proved, they were foisted by the TTIs. creating havoc. The 2nd respondent was victimized for no fault on his part. He had undergone several pains to disprove the false charges framed against him by the TTIs. The 2nd respondent was out of employment from 11.10.1993 due to the false case booked by the TTIs. Therefore, the petitioners were directed to reinstate the 2nd respondent into service with continuity of service and with 50% 7 back wages. Admittedly, all these reliefs awarded by this Court were upheld by this Court in Writ Petition No. 4946 of 2006, dated 23.07.2008. As per the decision reported in 2000 LLR 1266 of the Hon'ble High Court of A.P., the respondents reinstated the 2nd respondent into service on 26.11.2005 and hence, he is entitled for the delayed salary from 16.10.2005 to 25.11.2005. Since this Court awarded reinstatement of the 2nd respondent with continuity of service and 50% back wages for the out of service period, the said 50% back wages cannot be calculated @ salary last drawn by him as on the date of his removal from service and the petitioners shall calculate the back wages awarded by this Court by giving increments and revision in pay scales of RPS 1993 to 2010 as per the decision cited by the learned counsel for the 2nd respondent. Consequently, the petitioners shall calculate and deposit the difference of back wages delayed salary and difference of salary payable to the 2nd respondent.
8. The Hon'ble Apex Court in Deepali Gundu Surwase's case (supra) held that ordinarily, an employee or workman whose services have been terminated and who is desirous of getting back-wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he /she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid 8 payment of full back-wages, then it has to plead and also lead cogent evidence to say that employee was gainfully employed and was getting wages equal to the wages he / she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on a person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. In this case, the employer failed to plead / lead cogent evidence to say that the employee was gainfully employed and was getting wages equal to the wages he was drawing prior to termination of service.
9. The observations made in the above Writ Petition as well as the findings recorded by the Labour Court clearly show that conducting the check itself is doubtful and it reflects the animosity against the employee by the checking officials. This Court therefore, accepts the contention of the 2nd respondent that the petitioners while calculating the amount had taken the last drawn wages which do not include increments and revised pay scales which is contrary to the Award passed by the Labour Court. 9
10. In view of the foregoing discussion, this Court does not find any reason to interfere with the order impugned. The Writ Petition is therefore, liable to be dismissed.
11. The Writ Petition is accordingly, dismissed. No costs.
12. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 06th September 2023 ksld