P.Raghu, Uppal, Hyderabad vs The Regional Manager, Apsrtc, ...
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         HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

              WRIT PETITION No. 27650 OF 2009

     ORDER:

This Writ Petition is filed to quash the Award dated

25.07.2007 in I.D.No. 132 of 2006 on the file of Additional

Industrial Tribunal-cum-Additional Labour Court, Hyderabad

insofar as not granting back-wages to petitioner.

2. Petitioner joined as Driver in the Corporation on

09.02.1988 and his services were regularised with effect from

01.03.1989. While he was working in the 2nd respondent depot, a

charge was framed for having consumed liquor while performing

duty on Uppal-Vijayawada special service bus bearing No. AP 11Z

5196 on 10/11.12.2005 which constitutes misconduct under

Regulation 28(xxi) and (xxxi) of APSRTC Employees (Conduct)

Regulations, 1963. Domestic enquiry followed and he was

suspended from service which ultimately resulted in removal by

the 2nd respondent vide order dated 01.04.2006. After availing the

remedies of Appeal and Revision unsuccessfully, petitioner raised

the subject Industrial Dispute.

The case of the petitioner is that he parked the bus

on platform No.6 at Imliban Bus station, Gowliguda. At that time,

bus was packed with 60 passengers and it was a night service.

While so, two passengers asked him to stop the bus at

Dilsukhnagar and Choutuppal for which he replied that since it

was express service there were no stops at Dilsukhnagar and

Choutuppal. It is his further case that he chewed zarda pan in

order to avoid sleep while driving the vehicle, then the bus station

manager came to him that there was complaint of consuming

alcohol. He disputed the same. The complaint of petitioner is that

while serving the charge sheet, statements recorded during

preliminary enquiry and copy of the complaint were not furnished.

It is his further grievance that though Osmania General Hospital

is so near to I.B.S., he was not referred to the said hospital in

order to find out the alleged drunkenness.

The Labour Court though held that there is no

evidence in proof that petitioner consumed liquor and that he was

in intoxication, denied back wags on the ground of 'no work no

pay'.

3. The Corporation in its counter stated that while

operating the service No. AP 11Z 5596, petitioner was found in

intoxicating condition on 10/11.12.2005 and he was not in a

position to drive the bus. He was immediately directed to security

branch MGBS and breath analyser test was conducted in front of

SASI, caretaker of MGBS and service conductor G. Buchaiah, and

informed that petitioner consumed liquor and he was not in a

position even to submit his statement. Therefore, Assistant

Manager (Traffic) detained the bus and withdrawn the driver from

service. The Enquiry Officer gave report together with the

statement recorded during the enquiry to petitioner and asked for

his remarks. Petitioner denied the charge but as per the report of

ASSI of MGBS who conducted breath analyser test, the alarm gave

sound indicating 130 points. It is evident from the deposition given

by Sri Rama Rao that a complaint has been received from

passengers regarding petitioner with bus No. 5596 that he was in

a drunken condition. After conducting enquiry, petitioner was

removed from service. In I.D.No. 132 of 2006, Labour Court

directed Corporation to take petitioner into service as driver with

continuity of service and all other attendant benefits but without

back-wages. Pursuant to the Award, petitioner was reinstated into

service and increment was fixed on revised pay scales 2005 as

Rs.7995+35 as on 08.12.2007, it may be reduced as Rs.7545+35

as Senior Law Officer vide letter dated 11.02.2009

4. Learned counsel for petitioner Sri V. Narsimha

Goud submits that Labour Court ought to have granted back-

wages also because the principle of 'no work no pay' does not

apply to the present case as petitioner was illegally prevented from

discharging his duties by the respondent herein. In fact,

petitioner specifically pleaded before the Court that he remained

unemployed from the date of removal and he could not get any

employment in spite of best efforts. He relies on the judgment of

the Hon'ble Apex Court in Deepali Gundu Surwase v. Kranti

Junior Adhyapak Mahavidyalaya 1.

5. Learned Standing Counsel submits that petitioner

is not entitled to back wages as the breath analyser test indicates

130 points and the same was witnessed by Sri Rama Rao, Care

taker of MGBS and service conductor. According to him, the

Labour Court has already shown lenience on petitioner and

granted reinstatement with continuity of service and all attendant

benefits. Hence, the same cannot be interfered with.

6. The limited grievance of petitioner is that though

Labour Court held that the present circumstances are not

sufficient and moreover there is no past record that delinquent is a

habitual drinker, denied wages on the ground of 'no work no pay'.

Per contra, the Corporation's case is that as per the report of ASSI

of MGBS, who conducted breath analyser test on petitioner and

reported that machine gave alarm sound indicating 130 points.

Basing on breath analyser test, petitioner was found to be in

intoxicating condition while on duty which has been witnessed by

Sri Rama Rao, Caretaker of MGBS and service conductor. It is

evident from the deposition given by Sri Rama Rao, care taker of

MGBS that a complaint was received from passengers that

petitioner with bus No. 5596 was in drunken condition as he was

not speaking normally and behaved with arrogance. In this regard,

(2013) 10 SCC 324

the case of petitioner is that he was chewing Baba pan gutka and

smell is emanating like alcohol, however, respondent has not sent

him for medical check up to Osmania Hospital which is nearer to

MGBS. The Labour Court while dealing with the case has taken a

lenient view in respect of the driver though there were specific

averments against him by way of statements of caretaker and

service conductor. It went on observing that even assuming that

he consumed anything, though his case was that he was chewing

only zarda pan, which emanates smell like that, it is common in

their duties to chew such things while performing night and

double duties to control their mind and to avoid sleep and that is

not a wrong or irregular. There is no ban or prohibition to that

effect and that cannot be taken adverse to the drivers, moreover it

is nothing but additional precautions taken by the drivers while

performing their duties. The findings of the Labour Court in

respect of the act committed by the driver shocks the conscience

of this Court. Petitioner being the driver of a bus run by the State-

owned Corporation is expected to be more careful and cautious

while on duty which admittedly was packed with sixty passengers.

The failure to do so may claim the lives of the passengers which

ultimately casts a stigma on the Corporation. This Court is

therefore, in total disagreement with the observations made by the

Labour Court.

7. At this stage, learned counsel for petitioner requests

that at least 75% back-wages be awarded. Learned Standing

Counsel seriously opposes the said request. In this factual

backdrop, it is to be seen, petitioner pleaded that he was not

gainfully employed during the subject period. It is never the case

of the Corporation also that he was employed elsewhere. To strike

a balance, this Court is inclined to grant 40% back-wages.

8. The Writ Petition is accordingly, allowed in part directing

the Corporation to grant 40% back-wages for the period in which

petitioner was out of service. No order as to costs.

9. Pending miscellaneous petitions, if any, shall stand

closed.

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NAGESH BHEEMAPAKA, J

06th October 2023

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