HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 26796 OF 2009
ORDER:
Award dated 31.01.2017 in I.D.No. 102 of 2004 on the file of Labour Court-I, Hyderabad in so far as denying the back wages is assailed in this Writ Petition.
2. Petitioner joined the services of Corporation as driver on 10.05.1997. He was suspended from service on 03.04.2003 for causing fatal accident while driving vehicle bearing No. AP 9Z 8360 on 20.02.2003 on route Vikarabad - Hyderabad. A charge sheet was issued for which, petitioner submitted explanation. After enquiry, he was removed from service by 2nd respondent vide order dated 22.08.2003. Aggrieved thereby, he preferred an Appeal and Revision which were rejected by orders dated 21.11.2003 and 18.03.2004 respectively. Petitioner therefore, filed the subject I.D., wherein the Labour Court held that punishment imposed by the Corporation is not proportionate to the gravity of misconduct and findings of the enquiry officer are not based on substantial evidence. The Corporation was therefore, directed to reinstate petitioner into service with continuity of service and all other attendant benefits but without backwages. 2
3. The Corporation filed counter-affidavit denying the averments made by petitioner. It is stated that petitioner drove the vehicle in a rash and negligent manner with lack of anticipation, as a result, a pedestrian died on the spot. It is stated that the Superintendent (Traffic) of Vikarabad Depot submitted preliminary enquiry report after obtaining rough sketch of accident and recording statements of petitioner and service conductor. Petitioner did vouch-safe that he was fully satisfied with conduct of enquiry. It is also stated that Labour Court observed that petitioner cannot drive the bus rash and negligently; he has not taken any precautionary measures while entering into the bus station resulting in death of a person on the spot; he caused loss of revenue to the Corporation, hence, he is not entitled to any back wages.
4. Learned counsel for petitioner Sri V. Narsimha Goud submits that the very charge sheet is not sustainable in law because the 3rd respondent had issued Circular after consulting the union that whenever any pedestrian try to board the moving bus either in the bus station or outside, invite the accident, such driver shall not be charge-sheeted. He submits that the Labour Court has not assigned any valid reasons while denying back wages even after holding the charges as not proved. Since the date of removal from service, petitioner remained unemployed till 3 he was reinstated into service on 25.07.2008, hence, he is entitled to back wages also, asserts learned counsel.
5. Heard learned Standing Counsel for Corporation.
6. Perused the record. The Labour Court after analysing the statements of Superintendent and petitioner and conductor of bus, came to the conclusion that bus was overcrowded at that time and deceased with his over-anxiety moved along with bus and fell down under the right side of rear wheel and succumbed to injuries and any amount of precaution or anticipation by the driver will not safeguard passengers who are making their sudden movements and flock over the bus which was entering into the bus station. It accordingly held that punishment imposed is not proportionate and directed reinstatement without back wages.
7. In this factual matrix, whether petitioner is entitled to back wages or not is the question to be decided.
8. The issue is no more res integra. The Hon'ble Apex Court in catena of judgments held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. Ordinarily, an employee or workman whose services are terminated and who is desirous of 4 getting back wages is required to either plead or at least make a statement before either 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 payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee / workman 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 the 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. The cases in which the Labour Court / Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee / workman is consistent with the rules of natural justice and / or certified standing orders, if any but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award back wages. However, if the Labour Court / Industrial Tribunal finds that the employee or 5 workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. (see Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya 1).
9. In Hindustan Tin Works Pvt. Ltd. V. The Employees of Hindustan Tin Works Pvt. Ltd. 2, the three-judge Bench of the Supreme Court observed as under:
" In the very nature of things there cannot be a
straight jacket formula for awarding relief of back wages. All
relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage, the Tribunal will exercise its discretion keeping in view all the relevant circumstances."
emphasis supplied
10. In A.L. Kalra v. Project and Equipment Corporation of India Ltd. 3, a three judge Bench of the Supreme Court observed as under:
" When removal from service is held to be illegal and invalid, the next question is whether: the victim of such action is entitled to back wages. Ordinarily, it is well-settled that if termination of service is held to be bad, no other punishment in the guise of denial of back wages can be imposed and therefore, it 1 (2013) 10 SCC 324 2 (1979) 2 SCC 80 3 AIR 1984 SC 1361 6 must as a necessary corollary follow that he will be entitled to all the back wages on the footing that he has continued to be in service uninterruptedly. ...."
Emphasis supplied
11. A Division Bench of this Court in Depot Manager, APSRTC, Guntur District v. Ch. Suresh Babu 4 , held as under:
" On the above analysis, as the termination from service was wholly unjustified in both the cases and was set aside on that count, this Court finds no grounds to interfere with the common order under appeal. The principle of entitlement to full back wages, being the normal rule, was squarely applicable. Given the fact that both the writ petitioners were regular employees and the length of their service was not meagre and as the erstwhile APSRTC failed to adduce any evidence to prove that either of them was gainfully employed after their termination from service, there were no mitigating circumstances warranting reduction in the payment of full back wages. The common order passed by the learned Judge holding to this effect therefore does not brook interference either on facts or in law."
12. In this case, admittedly, petitioner pleaded before the Court of first instance that he is not gainfully employed during the period of removal. Then the burden shifted to the employer to prove that employee was gainfully employed, but the Corporation failed to produce any cogent evidence in that regard. Though the Labour Court observed that any amount of precaution or anticipation by petitioner will not safeguard the passenger who 4 2019(2) ALD 264 (D.B.) 7 was making sudden movement into the bus which was entering into bus station and learned Enquiry Officer has not appreciated this aspect in proper perspective, no reasons whatsoever are forthcoming from the Award as to why the Labour Court deemed it appropriate to deny back wages. Further, the Corporation also did not challenge the Award so far as reinstatement of petitioner. In view of the same and in the light of the settled legal position, this Court is of the firm opinion that the Labour Court erred in denying back wages. The order impugned to that extent is therefore, liable to be set aside.
13. The Writ Petition is accordingly allowed setting aside the Award dated 31.01.2007 in I.D.No. 102 of 2004 on the file of Labour Court-I, Hyderabad to the extent of denying back wages. No order as to costs.
14. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 11th September 2023 ksld