Telangana High Court
M.D., Apsrtc, Hyd. And 3 Ors. vs B. Narayana And Ano. on 11 November, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 39257 OF 2015
O R D E R:
The State-owned Road Transport Corporation (for short, 'the Corporation'), challenging the Award of the Labour Court - II, Hyderabad in ID No. 83 of 2013, dated 27.04.2013, to the extent of directing reinstatement of the 1st respondent as a Conductor at entry-level without any benefits of service, despite the established acts of serious misconduct, filed this Writ Petition.
2. The case of the Corporation is that the 1st respondent faced multiple instances of disciplinary action, including deferment of annual increments on twenty-three occasions and receiving censure on seven occasions for various acts of misconduct. In addition, he was removed from service on two occasions in 1996 and 1997, for unauthorized absenteeism, but subsequently was reinstated with penalty of postponing his increments with cumulative effect.
The matter at hand stems from the discovery of serious financial irregularities involving the 1st respondent during an inspection by Sri K.N. Rao, the Deputy Chief (E) of Nizamabad-II Depot, who was scrutinizing the STAR (ticketing 2 system) documents. On detecting anomalies, an investigation was initiated, led by Sri N. Sayanna, Assistant Manager (T) of Nizamabad-II Depot. A preliminary inquiry was conducted, during which statements from the 1st respondent and Sri K.N. Rao were recorded. Following the inquiry, a report was submitted on 30.12.2011 to the Corporation. The inquiry revealed significant cash and ticket irregularities committed by the 1st respondent between 20.10.2011 and 03.11.2011, leading to issuance of charge sheet alleging nine charges on 04.01.2012. The 1st respondent was placed under suspension pending inquiry. The sum and substance of the charges is 'on 20.10.2011, while performing his duty with STAR No.097/867206, the 1st respondent issued 28 tickets of Rs.40/- worth Rs.1120/- that were not assigned to his tray, failing to remit the corresponding revenue. Similarly, on 27.10.2011, while performing duty with STAR No.106/810131, he sold 10 tickets worth Rs.600/- without remitting the proceeds. Further charges included issues on 28.10.2011, 31.10.2011, 01.11.2011, 02.11.2011, and 03.11.2011, where the 1st respondent recycled tickets from previous duties, issued tickets beyond the designated block, and misappropriated revenue, with a total 3 defrauded amount of Rs.8500/- over the period of the irregularities'.
The 1st respondent acknowledged the charge sheet on 06.01.2012 and requested certain documents related to the case, which were duly provided by the Corporation on 21.02.2012. The explanation dated 07.02.2012 submitted by him was found to be unsatisfactory. As a result, the Disciplinary Authority ordered a formal domestic inquiry. After conducting enquiry, on 31.05.2012, the Inquiry Officer submitted report, confirming that the 1st respondent was guilty of the charges. Since no objections were submitted, a show-cause notice for removal from service was issued on 28.06.2012, and after considering the explanation, the Disciplinary Authority passed the order of removal from service on 19.07.2012.
Dissatisfied, the 1st respondent filed Appeal, which was rejected on 20.09.2012, so also the Review on 14.02.2013. In further pursuit, the 1st respondent filed a Mercy Petition before the 2nd petitioner, which was rejected on 30.05.2013. Subsequently, he raised the subject Dispute before the Labour Court. The Labour Court, in its order dated 25.11.2014, held that the domestic inquiry was valid and complied with all legal requirements. The 1st respondent had committed serious 4 misconduct and was guilty of the charges levelled against him. Despite acknowledging the gravity of actions and their intentional nature, the Labour Court directed that the 1st respondent be reinstated as a fresh conductor at the entry level without any of the service benefits. The reinstatement was to be subject to the 1st respondent starting afresh in the organization, essentially treating him as a new employee.
3. Learned Standing Counsel for the Corporation Sri Anurag submits that Labour Court's direction to reinstate the 1st respondent, albeit at a lower level, is unjustified in view of the severity and intentional nature of misconduct. He argues that the 1st respondent's actions were not mere lapses but deliberate acts of misappropriation, which resulted in significant loss to the Corporation. Learned Standing Counsel emphasizes that such serious misconduct, involving financial fraud and breach of trust, should not warrant reinstatement under any circumstances. According to him, Labour Court, despite finding the misconduct to be of serious nature and justifying the removal from service, erred in granting reinstatement without service benefits, as it undermines the integrity of the disciplinary process and sets a precedent for leniency in cases of significant financial misconduct.
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4. This Court, while admitting the Writ Petition, by order dated 03.12.2015, granted interim suspension as prayed for. It observed that the Labour Court-II, Hyderabad while upholding the charge levelled against the 1st respondent and affirming the punishment of dismissal imposed, issued direction for his appointment as fresh Conductor. Once disciplinary action is taken and punishment imposed is upheld, question of granting further direction to appoint him as a fresh conductor, prima facie, is erroneous.
5. Pending Writ Petition, the 1st respondent had taken out W.P.M.P.No. 14014 of 2016 seeking payment of wages last drawn including its allowances as mandated under Section 17-B of the Industrial Disputes Act (for short, 'the Act'). To the said Application, the Corporation filed counter denying the allegation that the 1st respondent was not gainfully employed from the date of his removal from service on 19.07.2012, despite his best efforts. It is contended that simply filing a claim for 17-B wages is not sufficient to prove that he was not gainfully employed during the period after his dismissal. Under Section 17-B, onus is on the workman to provide evidence showing that he has not been employed during the period in question. The Corporation further elaborates on the provision of Section 17-B 6 which mandates that 'if a Labour Court, Tribunal or National Tribunal orders reinstatement of a workman and the employer challenges the Award in the High Court or Supreme Court, the employer must pay the workman full wages last drawn during the pendency of the proceedings, provided the workman was not gainfully employed during the period. The workman must file an affidavit affirming that he has not been employed, and if the employer can prove that the workman was gainfully employed and receiving adequate remuneration, the Court may deny payment of wages under Section 17-B for that period'. Therefore, learned Standing Counsel argues that burden of proof rests on the 1st respondent to establish that he was not employed during the period after the award was passed. Since the workman has not submitted any records or concrete evidence to demonstrate that he was not gainfully employed after the Award, the Corporation contends that the claim for 17-B wages should be rejected. The workman's vague and unsubstantiated statement claiming that he remained unemployed due to his inability to find work is insufficient to meet the requirements set forth by Section 17-B. Furthermore, he has not disclosed how himself and his family managed to survive during the period following his 7 removal. Learned Standing Counsel further argues that Section 17-B is a welfare measure designed to provide financial support to workman whose reinstatement is delayed due to legal proceedings. He points out, however, that in the present case, Labour Court's Award directed workman's reinstatement without back-wages and the workman would have been reinstated as a fresh Conductor at a lower pay scale than the salary he last drew. Therefore, even if the Award had been implemented, he would have faced loss of wages, as his reinstatement would have been at a lower pay level. Learned Standing Counsel asserts that proportionality of loss of wages should be considered when evaluating the 1st respondent's claim for 17-B wages. Learned Standing Counsel, in this context, relies on the judgment of the High Court of Maharashtra in U.P. State Bridge Corporation Ltd. v. Maharashtra General Kamgar Union 1 and of the Hon'ble Supreme Court in National Gandhi Museum v. Sudhir Sharma 2.
6. Learned counsel for the 1st respondent Sri V. Narsimha Goud relying on the judgments of the Hon'ble Supreme Court in Novartis India Limited v. State of West 1 2008 (4) Mh.L.J. 2 (2021) 12 SCC 439 8 Bengal 3, submits that the fact that workman survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings, may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. He further relied on the judgment in Joint General Secretary Workman, Indian Airports Kamgar Union, Begumpet, Hyderabad v. Airports Authority of India, Hyderabad 4 and contends that legality of the Award cannot be examined in an Application under Section 17-B of the Act. According to the learned counsel, the scope of enquiry is very limited and restricted in an Application under Section 17-B of the Act and it is only to find out as to whether the requirement under Section 17-B of the Act is satisfied or not.
7. Upon careful review of the arguments presented by both the parties, it is clear that the Labour Court's decision to reinstate the 1st respondent, even at a lower entry-level position, is not consistent with the gravity of the misconduct committed. The 1st respondent's actions, involving deliberate financial misappropriation amounting to Rs.8,500/-, in conjunction with 3 (2009) 3 SCC 124 4 2015(4) ALD 698 9 his long-standing record of repeated disciplinary infractions, point to a clear pattern of misconduct that severely undermines the trust and fiduciary responsibility inherent in his role as a conductor with the Corporation. The Labour Court, while acknowledging the seriousness of the 1st respondent's misconduct, erred in directing his reinstatement, albeit at the entry-level, without considering the totality of his actions. This could potentially encourage employees to take advantage of the system, knowing that even grave offenses might be subject to lighter sanctions. In view of the same, this Court is of the opinion that the Labour Court rightly took the decision to remove the 1st respondent from service and the order of removal was in line with the Corporation's duty to maintain discipline, protect its financial interests, and ensure the integrity of its operations. Moreover, it is pertinent to note here that this Court, while granting interim suspension, observed that once disciplinary action is taken and punishment imposed is upheld, the question of granting further direction to appoint the workman as a conductor, prima facie, is erroneous.
8. As regards payment of wages under Section 17-B is concerned, this Court is of the opinion that the 1st respondent failed to provide sufficient evidence to prove that he was not 10 gainfully employed during the period of legal proceedings. The onus of proof rests on the workman, and the 1st respondent's vague statements about his unemployment does not meet the requirements under Section 17-B of the Act. Though learned counsel for the workman relied on the judgments cited supra, this Court is of the opinion that the 1st respondent has failed to comply with the basic requirement enumerated in Section 17-B. He has not filed any affidavit to vouch safe the fact that he was not gainfully employed in the interregnum. In the counter- affidavit filed by the Corporation it is, in clear and categorical terms, stated that the 1st respondent has to substantiate the claim that he was not gainfully employed and only then, the primary onus of him is discharged and it shifts to management. Admittedly, the 1st respondent no where pleaded nor whispered how he sustained from the date of Award till filing the Application and as per the present circumstances to claim the right of 17-B wages, he has to prove how he is earning his livelihood all these years without gainful employment. As rightly contended by the learned Sanding Counsel, Section 17-B has been included in the Act as a welfare measure to the workman when his reinstatement is stalled by the proceedings before the High Court of the Supreme Court, as such, the Secton17-B 11 wages were fixed based on last drawn pay, as he would have been more benefitted if he is reinstated as per the Award. However, it is to be noted, in the case at hand, order of removal was conformed and the 1st respondent was reinstated as a fresh conductor without any benefits of his past service. Further, in view of the order of suspension granted by this Court, the 1st respondent was not taken into employment as a fresh conductor even till date. In the light of the same, viewed from any angle, this Court is of the firm opinion that the 1st respondent's claim for wages under Section 17-B must fail.
9. For the reasons outlined above, the Writ Petition is allowed. The order impugned is hereby quashed. The 1st respondent shall not be appointed as a fresh conductor reinstated to service, and the petitioners' decision to terminate his employment stands.
10. Consequently, miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 11th November 2024 ksld