Md. Sardar vs Apsrtc, Musheerabad, Hyd Another
2021 Latest Caselaw 4084 Tel

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.15088 OF 2004


                                 ORDER

This Writ Petition is filed seeking a Writ of Certiorari to quash

the impugned award dt.20.08.2003 in I.D.No.20 of 2001 published on

30.09.2003, in so far as it denies the back wages, notional increments

for the removal period and stoppage of 3 increments with cumulative

effect after reinstatement, as illegal, arbitrary and against the

principles of natural justice.

2. Brief facts are that the petitioner joined the services of the 1st

respondent corporation as driver in the year 1989 and his services

were regularised with effect from 01.07.1991. On 17.09.1998, the

petitioner was issued a charge sheet for unauthorised absence from

23.06.1998 to 23.07.1998 and 25.07.1998 onwards without any

intimation and prior sanction of leave which constitute misconduct

under Regulation 28(xxvii) of the Conduct Regulations, 1963.

Aggrieved, the petitioner raised a dispute before the Labour Court-II,

Hyderabad and the Labour Court after considering the explanation

given by the petitioner for unauthorised absence set aside the removal

order and directed the respondents to reinstate the petitioner into

service without back wages. The Labour Court also held that the W.P.No.15088 of 2004

petitioner is not entitled for notional increments for the period from

25.07.1998 till he joins duty as per the order and also that the

respondents are at liberty to defer two annual increments of the

petitioner with cumulative effect. Against this award of the Labour

Court in I.D.No.20 of 2001, this Writ Petition is filed.

3. Learned counsel for the petitioner, Sri V. Narasimha Goud,

relied upon a decision of this Court in the case of P. Sanjeeva Rao

Vs. The Presiding Officer, Labour Court-II, Hyderabad and

another1, wherein under similar circumstances, the Hon'ble Court has

held that the petitioner therein is entitled to full back wages. In the

Writ Appeal filed by the organization in W.A.No.756 of 2011, the

Hon'ble High Court by judgment dt.20.09.2013 has restricted the back

wages to 50%. The learned counsel for the petitioner submitted that

the writ petitioner has since retired and substantial relief would be

granted if a similar direction is given in this case also. He also

submitted that not granting back wages and also withholding the

increments and deferment of two increments with cumulative effect is

nothing but double punishment.

4. Learned counsel for the respondents, Sri N. Praveen Kumar,

however supported the orders of the Labour Court.

W.P.No.26500 of 2008 dt.19.11.2010 W.P.No.15088 of 2004

5. Having regard to the rival contentions and the material on

record, this Court finds that the petitioner was removed from service

for the charge of unauthorised absence and the punishment of removal

from service has been modified to that of reinstatement of service but

with stoppage of two increments with cumulative effect. Thereafter,

denial of back wages totally along with stoppage of notional

increments for the removal period is harsh and excessive.

6. This Court in the case of P. Sanjeeva Rao Vs. The Presiding

Officer, Labour Court-II, Hyderabad and another (1 supra) has

held as under:

"By report dated 117.01.2005 the Enquiry Officer, while referring to the unauthorized absence of the petitioner from 19.12.2004 to 16.01.2005 in the subject caption of the report, stated thereunder that it was a case of chronic absenteeism of the petitioner and dealt with not only the petitioner's absence between the stipulated dates but also various other absences. Pertinent to note, the said absences were not made the subject matter of the charge sheet. Having transgressed his warrant, the Enquiry Officer returned a positive finding against the petitioner. Basing thereupon, the APSRTC issued a 'show cause Notice for removal from service' on 20.01.2005 wherein two charges were levelled against the petitioner. In addition to the charge contained in the charge sheet, a second charge was included and reads as under:

"CHARGE No.2: For your irregular attendance for duties". This second charge was held proved by extracting the observations of the Enquiry Officer in his report. It is on the basis of these proceedings that the petitioner was removed from service under order dated 22.02.2005.

W.P.No.15088 of 2004

The approach adopted by the APSRTC is unorthodox to say the least and wholly illegal. The charge levelled against the petitioner was with regard to a specific absence between two particular dates. The Enquiry Officer went beyond the said charge and dealt with the misconduct of chronic absenteeism, which was not levelled against the petitioner in the charge sheet. Based on this irregular enquiry report, the disciplinary authority issued a Show Cause Notice including a fresh charge, viz. 'irregular attendance from duty', which did not figure either in the charge sheet or in the enquiry proceedings. This clearly shows that the APSRTC resorted to building up its case from stage to stage, which is not only irregular but also prejudicial to the workman involved. Such a procedure has no legal sanction and is utterly opposed to the rule of law.

.... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... Thus, for reasons more than one grounded both in law and on facts, the Award of the Labour Court upholding the removal of the petitioner from service cannot be sustained and is accordingly set aside. The APSRTC is directed to reinstate the petitioner in service with continuity of service and attendant benefits. In so far as the relief of back wages is concerned, it is pertinent to note that the petitioner stated before the Labour Court that since his removal from service he could not get any alternate employment or source of income to eke out his livelihood and maintain his family. The APSRTC failed to lead any evidence to rebut this factual averment. As the procedure followed by the APSRTC in the course of the disciplinary proceedings is held to be unsustainable being contrary to the rule of law, the petitioner's removal from service stemming therefrom would be void ab initio. The petitioner is therefore entitled to full back wages."

7. In W.A.No.756 of 2011, this Hon'ble Court held as under:

W.P.No.15088 of 2004

"13. In the present case, neither the authorities nor the Labour Court has considered the decision in proper perspective and as per the settled principle of law, the learned Single Judge took the view that the second charge i.e., show cause notice is beyond the charge dated 17.01.2005. As such, imposing punishment of removal from service is void ab initio and the Labour Court failed to properly exercise jurisdiction under Section 11-A of the Industrial Disputes Act, 1947. The Labour Court also did not go into the issue as to the proportionality of the punishment for the charge of absence to the duties submitted in the charge sheet.

14. We have gone through the order of the Labour Court as well as the order of the learned Single Judge. We do not find any infirmity in the orders passed by the learned Single Judge in sofar as reinstatement and continuity of service and attendant benefits are concerned. But, as far as the relief of back wages is concerned, it is not a matter of course but the same have to be granted keeping in view the facts and circumstances of the case. It is also settled principle of law that grant of back wages is not a matter of course and at the same time denial of back wages is also not automatic.

15. In view of the facts and circumstances of the case, we are of the view that interests of justice would be met, if grant of the back wages by learned Single Judge is restricted to 50%."

8. Therefore, respectfully following the decision of this Court in

W.P.No.26500 of 2008 dt.19.11.2020 and W.A.No.756 of 2011,

dt.20.09.2013, 50% of back wages are directed to be paid to the

petitioner with interest @ 6% per annum within a period of 90 days

from the date of receipt of this order.

9. The Writ Petition is accordingly allowed. No order as to costs.

W.P.No.15088 of 2004

10. Pending miscellaneous petitions, if any, in this Writ Petition

shall stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Dt. 02.12.2021 Svv