P Showreelu vs Th Depot Manager
2022 Latest Caselaw 8056 AP

        HONOURABLE SMT. JUSTICE V. SUJATHA

                Writ Petition No.2345 of 2019

ORDER:

The writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

"to issue a Writ or Order more in the nature of Mandamus in declaring the award dated 09.12.2015 in I.D.No.12 of 2010 as arbitrary and illegal and violative of Articles 14 and 21 of the Constitution of India and the provisions of the Industrial Disputes Act, 1947 in so far as it relates to denial of back wages, attendant benefits with interest @ 12% p.a. from their due date till realisation only by modifying the same to that extent and consequently to direct the respondents 1 and 2 to pay back wages all other attendant benefits with interest at 12% p.a. from due date till the date of realisation."

2. The case of the petitioner, in brief, is that the

petitioner joined as driver in APSRTC in 1997 and worked

as such up to 10.12.2008. While the petitioner was

working in the 1st respondent depot, he was issued charge

sheet dated 11.12.2008 alleging that while he was

performing his duty on the route Guntur to Amaravathi on

01.12.2008, an auto bearing No.AP-7W-2074 coming in 2 VS, J

W.P.No.2345 of 2015

opposite direction dashed the bus driven by the petitioner

at about 11.30 PM resulting in the death of three inmates

travelling in the auto on the spot, while the other

passengers received injuries. It is further alleged that the

accident occurred only due to the rash and negligent

driving of the petitioner and he was responsible for the

damage caused to the bus, which constitutes misconduct

under Regulation 28 of APSRTC Employees (Conduct)

Regulations 1963. The petitioner submitted his explanation

denying the charges levelled against him and a domestic

enquiry was conducted. Thereafter, based on erroneous

findings of the Enquiry Officer, the petitioner was removed

from service vide orders dated 29.04.2009. The authorities

concerned rejected the appeal as well as the review

preferred by the petitioner against the said orders.

Thereafter, the petitioner raised an industrial dispute in

I.D.No.12 of 2010 before the 3rd respondent-Labour Court.

The 3rd respondent, on comprehensive adjudication of the

dispute, passed the award dated 09.12.2015, which read

as follows:

                                    3                                 VS, J

                                                       W.P.No.2345 of 2015

"In the result, the petition is partly allowed and the respondents are directed to reinstate the petitioner giving continuity of service. However, the petitioner is not entitled for back wages and attendant benefits."

Pursuant to the said order of the 3rd respondent, the

petitioner was reinstated into service, but without back

wages. The grievance of the petitioner is that when

misconduct attributed against him was not proved, denial

of granting back wages is nothing but illegal and contrary

to settled principles. Challenging the said order of the

Industrial Tribunal to the extent of denial of back wages

and attendant benefits, the present writ petition is filed.

The respondents filed their counter, while denying

the averments of the writ petition, contended that due to

the rash and negligent driving of the petitioner, which

occurred on 01.12.2008, three passengers travelling in the

auto died on the spot and other passengers were received

injuries, besides causing huge damage to the bus and if at

all the petitioner had taken precautionary steps, he would

have averted the accident. A case was registered by the 4 VS, J

W.P.No.2345 of 2015

police against him as Crime No.127 of 2008 under Section

304A and 337 IPC. The respondents further contended that

the Enquiry Officer conducted a detailed enquiry and

submitted his report holding that the charges levelled

against the petitioner was proved. On perusal of the entire

evidence on record, the explanations as well as the

objections of the petitioner, final orders were passed

removing the petitioner from service. The appeal as well as

review filed by the petitioner were rejected on merits.

Thereafter, the petitioner filed a memo on 09.11.2015

before the 3rd respondent-Labour Court stating that he was

not questioning the validity of the domestic enquiry, which

was held valid. There was no oral evidence on either side.

The respondents further stated that the accident occurred

is a major accident where six persons died and nine

persons were injured. When the petitioner was reinstated

into service with continuity of service, the question of

denying back wages and attendant benefits does not arise,

more so, there is no scope for reappreciating the evidence 5 VS, J

W.P.No.2345 of 2015

in writ petitions. The writ petition is devoid of merit and

the same is liable to be dismissed.

Heard Sri M. Pitchaiah, learned counsel for the

petitioner and Sri N. Srihari, learned standing counsel for

the respondents 1 and 2.

While reiterating the contents of the writ petition,

learned counsel for the petitioner vehemently argued that

the 3rd respondent-Labour Court, having held that

misconduct attributed against the petitioner is not proved,

grossly erred in not granting back wages and attendant

benefits. He contended that denial of back wages will

embolden the unscrupulous employers to effect arbitrary

termination and due to denial of back wages and other

attendant benefits, the petitioner will be put to severe

financial loss and other benefits which would affect the

terminal benefits also. He further contends that the

respondents 1 and 2 failed to add increments to the salary

of the petitioner by taking into consideration the period

from the date of removal till his reinstatement into service, 6 VS, J

W.P.No.2345 of 2015

on the ground that he was employed elsewhere during the

said period.

On the other hand, learned standing counsel for the

respondents, while reiterating the contents of the counter,

supported the order passed by the 3rd respondent-Labour

Court. He further contends that the claim of the petitioner

that he was not employed elsewhere during the period of

removal from service till his reinstatement is not acceptable

on the ground that there was no evidence on either side,

that too there was no cross-examination to rebut the same.

Ultimately, he contends that since the award passed by the

3rd respondent-Labour Court is well justified, the same

needs no interference.

Keeping in view the above rival contentions, a perusal

of the award of the 3rd respondent-Labour Court would

show that it is the specific case of the petitioner that there

was no negligence on his part in causing the accident as he

stopped the bus to the left side of the road on seeing the

auto coming in opposite direction, but, the driver of the 7 VS, J

W.P.No.2345 of 2015

auto drove the same in a rash and negligent manner and

dashed the bus, as he could not control the auto.

But, in the domestic enquiry, though several

documents were placed before the Labour Court for proving

that the accident took place due to the rash and negligent

driving on the part of the driver, the Enquiry Officer failed

to take into account the very fact that report given to the

police by the V.A.O. in-charge of the place of the accident

disclosed that both the vehicles dashed each other and

thereby the accident took place. Even Ex.M.6-the rough

sketch of the accident also suggested that there was no

fault on the part of the petitioner; that the bus was

stationed on the left side margin of the road and that the

auto was also facing towards Amaravathi. The specific case

of the petitioner is that the auto dashed to the left side of

the bus and thereby the auto turned back and the

topographical situation mentioned in Ex.M.6 document

totally supports the case of the petitioner regarding the

manner in which the accident took place.

                                8                            VS, J

                                               W.P.No.2345 of 2015

It is also the specific case of the petitioner is that the

petitioner was enquired and tried both on departmental

side as well as on criminal side for the same charges. When

the prosecution failed to prove the guilty of the petitioner in

the criminal case and thereby he was acquitted, the one

sided evidence of the witnesses should not be relied on in

the departmental enquiry. A perusal of the order of the

Labour Court would show that the labour Court having

observed that the accused was the driver of the bus at the

time of accident, held that no evidence was let in to show

that he was rash and negligent in driving the bus; and

when the evidence of the witnesses was examined, each

witness stated differently as to the number of passengers

travelled in the auto; and that PW.8 stated that in total

eleven passengers were present in the auto at the time of

incident, who requested the driver of the auto to drive the

auto slowly. The Labour Court ultimately came to a

conclusion that the bus was present at the left side of the

road margin and was coming in its regular course, whereas

the auto was coming in a wrong direction and dashed the 9 VS, J

W.P.No.2345 of 2015

bus towards left side and that there was no possibility for

the driver to drive the bus in a rash and negligent manner

and accordingly, the Labour Court set aside the finding

given in the Departmental enquiry, while directing the

reinstatement of the petitioner into service with continuity

of service, but, without back wages.

In support of his contention, learned counsel for the

petitioner relied upon a decision reported in Shambhu

Nath Goyal v. Bank of Baroda and others1, wherein the

Hon'ble Supreme Court held as follows:

"........The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduced the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this court, after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management

(1983) 4 SCC 491 10 VS, J

W.P.No.2345 of 2015

has not resorted to that course. The workman was not expected to prove the negative.....

.......It would not be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time......"

Similarly, in Deepali Gundu Surwase v. Kranti

Junior Adhyapak Mahavidyalaya and others 2, wherein

the Hon'ble Supreme Court held as under:

"......In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/ workman, the financial condition of the employer and similar other factors.

Ordinarily an employee of workman whose services are 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......"

On the other hand, learned standing counsel for the

respondents relied upon a judgment reported in Rajasthan

State Road Transport Corporation, Jaipur v. Phool

(2013) 10 SCC 324 11 VS, J

W.P.No.2345 of 2015

Chand3, wherein the Hon'ble Supreme Court held as

follows:

".........In our considered opinion, the courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/ termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his 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 the 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 the 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 some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial, depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages are required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies, etc., were elaborately discussed in several cases by this Court wherein the law on these questions has been settled......"

Further, it is the contention of the learned counsel for

the petitioner that the Labour Court, having found that the

(2018) 18 SCC 299 12 VS, J

W.P.No.2345 of 2015

termination order is neither illegal and nor arbitrary, have

set aside the findings given in the departmental enquiry

and directed reinstatement of the petitioner into service

with continuity of service, but, without back wages.

Further, it is the case of the respondents that there was no

evidence regarding alleged employment and earnings of the

petitioner subsequent to the date of removal. The ground

on which the back wages was denied to the petitioner is

that the petitioner failed to prove that he was employed

subsequent to the date of removal from service.

It is also the grievance of the learned counsel for the

petitioner that in view the provisions of Section 11A of the

Industrial Disputes Act, which curtails the right of the

petitioner to adduce evidence with regard to his

employment and earnings subsequent to the date of

removal, the question of entering into the witnesses box

and putting himself for cross-examination does not arise.

As such, the petitioner is entitled for back wages.

                                            13                                   VS, J

                                                                W.P.No.2345 of 2015

However, it may be relevant to refer to Section 11A of

the Industrial Disputes Act, which reads as under:

Section 11A: Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.]

A perusal of the above provision makes it clear that

in any proceeding under the Section, the Labour Court or

the Tribunal shall rely only on the material on record, but

shall not take any fresh evidence in relation to the matter.

Therefore, in view of the above provision, the petitioner

could not adduce his evidence regarding alleged

employment and earnings subsequent to the date of 14 VS, J

W.P.No.2345 of 2015

removal from service. Therefore, the view taken by the

Labour Court that there was no evidence regarding the

alleged employment and earning of the petitioner

subsequent to the date of removal is unsustainable in view

of the restriction under Section 11A of the Act for adducing

evidence.

In the case on hand, this court, on perusal of the

material on record, it appears that the Labour Court,

having found that when the prosecution failed to prove its

case beyond reasonable doubt and thereby the petitioner

was acquitted in a criminal case and also having come to a

conclusion that from the evidence placed during the

domestic enquiry and the criminal trial, it is very difficult

to give a positive finding that the petitioner was responsible

for the incident, the respondent Corporation cannot

terminate the services of the petitioner basing on one sided

witnesses in the departmental enquiry, ought not to have

denied the back wages. Therefore, the order of the Labour

Court in so far as it relates to denial of back wages is not

sustainable in law and the same is liable to be set aside.

                               15                           VS, J

                                              W.P.No.2345 of 2015

Accordingly, the writ petition is allowed and the

award of the Labour Court in so far as it relates to denial of

back wages is set aside. However, the petitioner is entitled

to back wages and the respondent Corporation is directed

to pay back wages to the petitioner from the date of his

reinstatement, within a period of four (4) months from the

date of receipt of a copy of the order.

As a sequel thereto, miscellaneous petitions, if any,

shall stand closed.

_______________ V. SUJATHA, J

Date: 28.10.2022 Ksn