Telangana High Court

D. Bhavaiah, Hyd vs The Regional Maanager, Apsrtc, ... on 11 September, 2023

Bench: Nagesh Bheemapaka

          HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

                  WRIT PETITION No. 26796 OF 2009

     ORDER:

Award dated 31.01.2017 in I.D.No. 102 of 2004 on

the file of Labour Court-I, Hyderabad in so far as denying the back

wages is assailed in this Writ Petition.

2. Petitioner joined the services of Corporation as

driver on 10.05.1997. He was suspended from service on

03.04.2003 for causing fatal accident while driving vehicle bearing

No. AP 9Z 8360 on 20.02.2003 on route Vikarabad - Hyderabad. A

charge sheet was issued for which, petitioner submitted

explanation. After enquiry, he was removed from service by 2nd

respondent vide order dated 22.08.2003. Aggrieved thereby, he

preferred an Appeal and Revision which were rejected by orders

dated 21.11.2003 and 18.03.2004 respectively. Petitioner

therefore, filed the subject I.D., wherein the Labour Court held

that punishment imposed by the Corporation is not proportionate

to the gravity of misconduct and findings of the enquiry officer are

not based on substantial evidence. The Corporation was therefore,

directed to reinstate petitioner into service with continuity of

service and all other attendant benefits but without backwages.

3. The Corporation filed counter-affidavit denying the

averments made by petitioner. It is stated that petitioner drove the

vehicle in a rash and negligent manner with lack of anticipation,

as a result, a pedestrian died on the spot. It is stated that the

Superintendent (Traffic) of Vikarabad Depot submitted preliminary

enquiry report after obtaining rough sketch of accident and

recording statements of petitioner and service conductor.

Petitioner did vouch-safe that he was fully satisfied with conduct

of enquiry. It is also stated that Labour Court observed that

petitioner cannot drive the bus rash and negligently; he has not

taken any precautionary measures while entering into the bus

station resulting in death of a person on the spot; he caused loss

of revenue to the Corporation, hence, he is not entitled to any back

wages.

4. Learned counsel for petitioner Sri V. Narsimha

Goud submits that the very charge sheet is not sustainable in law

because the 3rd respondent had issued Circular after consulting

the union that whenever any pedestrian try to board the moving

bus either in the bus station or outside, invite the accident, such

driver shall not be charge-sheeted. He submits that the Labour

Court has not assigned any valid reasons while denying back

wages even after holding the charges as not proved. Since the

date of removal from service, petitioner remained unemployed till

he was reinstated into service on 25.07.2008, hence, he is entitled

to back wages also, asserts learned counsel.

5. Heard learned Standing Counsel for Corporation.

6. Perused the record. The Labour Court after

analysing the statements of Superintendent and petitioner and

conductor of bus, came to the conclusion that bus was

overcrowded at that time and deceased with his over-anxiety

moved along with bus and fell down under the right side of rear

wheel and succumbed to injuries and any amount of precaution or

anticipation by the driver will not safeguard passengers who are

making their sudden movements and flock over the bus which was

entering into the bus station. It accordingly held that punishment

imposed is not proportionate and directed reinstatement without

back wages.

7. In this factual matrix, whether petitioner is entitled

to back wages or not is the question to be decided.

8. The issue is no more res integra. The Hon'ble Apex

Court in catena of judgments held that in cases of wrongful

termination of service, reinstatement with continuity of service and

back wages is the normal rule. Ordinarily, an employee or

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 either adjudicating authority or the Court of first

instance that he / she was not gainfully employed or was

employed on lesser wages. If the employer wants to avoid payment

of full back wages, then it has to plead and also lead cogent

evidence to prove that the employee / workman was gainfully

employed and was getting wages equal to the wages he / she was

drawing prior to the termination of service. This is so because it is

settled law that the burden of proof of the existence of a particular

fact lies on the person who makes a positive averment about its

existence. It is always easier to prove a positive fact than to prove

a negative fact. Therefore, once the employee shows that he was

not employed, the onus lies on the employer to specifically plead

and prove that the employee was gainfully employed and was

getting the same or substantially similar emoluments. The cases

in which the Labour Court / Industrial Tribunal exercises power

under Section 11-A of the Industrial Disputes Act, 1947 and finds

that even though the enquiry held against the employee /

workman is consistent with the rules of natural justice and / or

certified standing orders, if any but holds that the punishment

was disproportionate to the misconduct found proved, then it will

have the discretion not to award back wages. However, if the

Labour Court / Industrial Tribunal finds that the employee or

workman is not at all guilty of any misconduct or that the

employer had foisted a false charge, then there will be ample

justification for award of full back wages. (see Deepali Gundu

Surwase v. Kranti Junior Adhyapak Mahavidyalaya 1).

9. In Hindustan Tin Works Pvt. Ltd. V. The

Employees of Hindustan Tin Works Pvt. Ltd. 2, the three-judge

Bench of the Supreme Court observed as under:

                     "     In the very nature of things there cannot be a
           straight jacket formula for awarding relief of back wages.      All

relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage, the Tribunal will exercise its discretion keeping in view all the relevant circumstances."

emphasis supplied

10. In A.L. Kalra v. Project and Equipment

Corporation of India Ltd. 3, a three judge Bench of the Supreme

Court observed as under:

" When removal from service is held to be illegal and invalid, the next question is whether: the victim of such action is entitled to back wages. Ordinarily, it is well-settled that if termination of service is held to be bad, no other punishment in the guise of denial of back wages can be imposed and therefore, it

(2013) 10 SCC 324

(1979) 2 SCC 80

AIR 1984 SC 1361

must as a necessary corollary follow that he will be entitled to all the back wages on the footing that he has continued to be in service uninterruptedly. ...."

Emphasis supplied

11. A Division Bench of this Court in Depot Manager,

APSRTC, Guntur District v. Ch. Suresh Babu 4 , held as under:

" On the above analysis, as the termination from service was wholly unjustified in both the cases and was set aside on that count, this Court finds no grounds to interfere with the common order under appeal. The principle of entitlement to full back wages, being the normal rule, was squarely applicable. Given the fact that both the writ petitioners were regular employees and the length of their service was not meagre and as the erstwhile APSRTC failed to adduce any evidence to prove that either of them was gainfully employed after their termination from service, there were no mitigating circumstances warranting reduction in the payment of full back wages. The common order passed by the learned Judge holding to this effect therefore does not brook interference either on facts or in law."

12. In this case, admittedly, petitioner pleaded before

the Court of first instance that he is not gainfully employed during

the period of removal. Then the burden shifted to the employer to

prove that employee was gainfully employed, but the Corporation

failed to produce any cogent evidence in that regard. Though the

Labour Court observed that any amount of precaution or

anticipation by petitioner will not safeguard the passenger who

2019(2) ALD 264 (D.B.)

was making sudden movement into the bus which was entering

into bus station and learned Enquiry Officer has not appreciated

this aspect in proper perspective, no reasons whatsoever are

forthcoming from the Award as to why the Labour Court deemed it

appropriate to deny back wages. Further, the Corporation also did

not challenge the Award so far as reinstatement of petitioner. In

view of the same and in the light of the settled legal position, this

Court is of the firm opinion that the Labour Court erred in denying

back wages. The order impugned to that extent is therefore, liable

to be set aside.