G. Ashok Kumar Died Per Lr vs Managing Director, Apsrtc And 2 ...
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         HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

              WRIT PETITION No. 24299 OF 2011

     ORDER:

This Writ Petition is filed seeking to quash the

impugned Award dated 04.02.2010 made in I.D.No. 144 of 2009

on the file of the Labour Court-III, Hyderabad insofar as not

granting back wages as arbitrary, unjust and in violation of

Articles 14, 16 ad 21 of the Constitution of India. A consequential

direction is sought to pay the benefits which would arise on

disposal of Writ Petition No. 24299 of 2011.

2. It is submitted that petitioner died during pendency

of Writ Petition, hence, his wife Smt. G. Bhagya Lakshmi was

brought on record as his legal representative vide order dated

28.06.2023 in I.A.No. 01 of 2018.

3. The case of workman is that he joined the service of

Corporation on 27.04.1983 and his services were regularised with

effect from 31.10.1983. While he was working under the control of

the 3rd respondent, he was suspended from service on 03.05.2006

on the allegation that he performed duty in drunken condition on

27.03.2006 on route No. 2J which was detected at about 10.05

hours at Jiyaguda by the checking officials of HES/Nirmal and for

having absconded from the spot Jiyaguda when DM/BKP,

AM(T)/BKP along with a driver who attended the spot where check

took place which constitutes misconduct in terms of Regulation

28(xxxii) of APSRTC Employees (Conduct) Regulations, 1963.

Departmental enquiry followed. Basing on the enquiry report, he

was removed from service. He unsuccessfully preferred Appeal and

Revision, thereafter, raised I.D.No. 21 of 2008 on the file of the

Labour Court-I, Hyderabad which was transferred to the Labour

Court-III, Hyderabad and renumbered as I.D.No. 144 of 2009.

Though Labour Court held that charges levelled against him were

not proved, did not grant back wages for no valid reasons. Hence,

the Writ Petition.

4. In the counter, it is stated that during his service in

the Corporation, petitioner was inflicted with numerous

punishments such as postponement of increments on three

occasions for having involved in accident cases. While performing

duty on 27.03.2006 on route No. 2J at 18.30 hours, a check was

exercised by the checking officials and found that he was driving

the bus in drunken condition and absconded from the place. The

checking officials informed AM(T)/BKP regarding the same. The

AM(T) along with a driver went to Jiyaguda point, at that time,

service driver was not there. Other driver was arranged who

brought the bus to the depot. The petitioner was placed under

suspension duly issuing a charge sheet on 03.05.2006, however,

he did not choose to submit his explanation to the charge sheet

though sufficient time was granted. Finally, on 17.05.2006, he

submitted explanation. During the course of enquiry also,

petitioner was given all the opportunities. After receiving the

enquiry report and evidence available on record, petitioner was

asked to submit his objection / comments. He submitted his

comments which are not convincing, hence show cause notice was

issued and he was removed from service by order dated

24.10.2006. It is submitted that on perusing the entire material,

the Labour Court held that enquiry proceedings are not valid

therefore, the petitioner had every opportunity to produce

appropriate evidence to defend his case before the Labour Court. It

is submitted that contention of petitioner that he could not get any

employment during the removal period is denied. The petitioner

did not lead any evidence though had an opportunity before the

Labour Court, except making the statement, therefore, the Labour

Court rightly denied back wages. The petitioner is not entitled to

any back wages on the principle 'no work no pay', hence, the Writ

Petition is liable for dismissal.

5. Learned counsel for petitioner submits that though

there is no evidence in support of the charges and no documents

were produced, the Enquiry Officer considered many documents

behind the petitioner which is in violation of the principles of

natural justice. If termination from service is shown to be illegal

and the employee / workman concerned was regularly appointed

and had put in substantial service, he would be entitled to full

backwages subject to his not having been gainfully employed after

his wrongful termination from service, is what contends the

learned counsel. In support thereof, he cited the judgment of the

Division Bench of this Court in Depot Manager, APSRTC, Guntur

District v. Ch. Suresh Babu 1.

6. Learned Standing Counsel Sri Thoom Srinivas

submits that petitioner is not entitled to backwages on the ground

'no work no pay', hence, the Award impugned need not be

interfered with as the Labour Court had already shown lenience

towards workman.

7. The labour court being the final court of facts came

to a conclusion that petitioner is entitled to reinstatement into

service. The finding of perversity or being erroneous or not in

accordance with law shall have to be recorded with reasons in

order to assail the finding of the Tribunal or the Labour Court. It is

not for the High Court to go into the factual aspects of the matter

and there is an existing limitation on the High Court to that effect.

Fortunately, reinstatement of petitioner is not in dispute in this

Writ Petition. Hence, this Court is not inclined to go into that

aspect.

8. As regards awarding back-wages is concerned,

whenever there is interference with the order of termination or

2019(2) ALD 264 (DB)

retirement, full back wages were the natural corollary. The Hon'ble

Supreme Court in a catena of judgments held so. At the same

time, a workman has no right to claim back-wages from his

employer as of right only because the court has set aside 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 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 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 the absence of the same, payment of back wages

having a discretionary element involved in it has to be dealt with,

in the facts and circumstances of each case and no straight-jacket

formula can be evolved, though, however, there is statutory

sanction to direct payment of back wages in its entirety.

9. At this juncture, learned counsel for petitioner

submits that workman passed away and in view of the judgment

of the Hon'ble Supreme Court in Rajasthan State Road

Transport Corporation v. Phool Chand 2, requests that

petitioner may be granted back-wages.

AIR 2018 SC 4534

10. In view of the above, having regard to facts and

circumstances of the case, such as period and money spent in

litigation by the deceased workman and on his death by his wife,

this Court considers it just and proper in the interest of justice to

award back-wages to petitioner No.2 at 75%.

11. The Writ Petition is accordingly allowed in part. The

respondent Corporation is directed to award 75% back-wages to

petitioner No.2 for the period in which workman was out of

service. No costs.

12. Pending miscellaneous petitions, if any, shall stand

closed.

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NAGESH BHEEMAPAKA, J

09th September 2023

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