Telangana High Court
B.Ramulu,Medak District vs The Depot Manager, Apsrtc., Zahirabad ... on 31 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
1
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No.17807 of 2007
ORDER:
The crux of the case of the petitioner as per the writ affidavit is
that he joined the respondent Corporation 06.05.1983 as Conductor;
and on the ground of cash and ticket irregularities, he was removed
from service on 30.11.1995. He approached the Labour Court by filing
ID No.124 of 1997, and the Labour Court vide Award dated 18.09.1997
directed the 1st respondent to reinstate the petitioner into service
afresh, without backwages or continuity of service. The petitioner was
reinstated on 10.11.1997, however, aggrieved by the Award of the
Labour Court insofar as non-continuity of service and non-granting of
backwages, the petitioner approached this Court by filing WP
No.10985 of 1998. The petitioner had also filed MP No.19 of 2005
before the Labour Court, under Section 33-C(2) of ID Act, claiming
Rs.2,58,020/- with interest at 18% from respondent Corporation. The
Labour Court dismissed the petition observing that the petitioner is not
entitled to the amount claimed in the petition. This Court by order
dated 08.03.2004 disposed of the writ petition WP No.10985 of 1998
by directing the 1st respondent to consider the previous service of 12
years for promotion etc, on humanitarian grounds. The petitioner filed
a review petition in Review WPMP No.31880 of 2006 and this Court by
order dated 17.01.2007 directed the respondent Corporation to
consider the 12 years of service of the petitioner for the purpose of
promotion, fixation of pay, but without any backwages. The petitioner
made a claim before the 2nd respondent for fixation of pay and for
granting of arrears of difference in salary. The 2nd respondent rejected
the claim; hence, this writ petition.
2. A counter affidavit has been filed by the respondent Corporation.
The sum and substance of the counter affidavit is that consequent to
the Award of the Labour Court, dated 18.09.1997, the petitioner was
reinstated into service afresh, without continuity of service or
backwages; and when the petitioner challenged the Award of the
Labour Court by filing WP No.10985 of 1998, this Court by order dated
08.03.2004 directed the 2nd respondent to consider the 12 years of
service rendered by the petitioner for the purpose of promotion etc, on
humanitarian grounds; and when the petitioner again filed a Review
Petition in WPMP No.31880 of 2006, this Court passed orders dated
17.01.2007 directing that the previous service of 12 years shall be
taken into consideration for promotion and fixation of pay etc., but not
for backwages. Therefore, there is no illegality in rejecting the claim of
the petitioner for payment of arrears of difference of wages.
4. Heard Sri J.M.Naidu, learned counsel for the petitioner; and Sri
A. Srinivas Reddy, learned Standing Counsel for the respondent
Corporation.
5. Learned counsel for the petitioner would primarily contend that
the order passed by this Court in WP No.10985 of 1998, dated
08.03.2004, and in Review WPMP No.31880 of 2006, dated 17.01.2007
make it clear that the petitioner is entitled to the arrears of difference
of pay by way of pay fixation and therefore the action of 2nd respondent
in rejecting the claim of petitioner is illegal.
6. Learned Standing Counsel, on the contrary, would contend that
this Court in WP No.10985 of 1998, dated 08.03.2004 directed the
respondent to consider the previous service of 12 years for the purpose
of promotion etc., on humanitarian grounds; and further this Court in
Review WPMP No.31880 of 2006, dated 17.01.2007 directed the
respondent to consider the previous service of 12 years for promotion
and fixation of pay, and it was made clear that the petitioner shall not
be eligible for backwages, and therefore there is no illegality in rejecting
the claim of petitioner. Reliance is placed on the judgment of the
Hon'ble Supreme Court in APSRTC v. S.Narsagoud 1.
7. Having considered the respective submissions, and also perusing
the material on record, more particularly the order dated 08.03.2004
passed by this Court in WP No.10985 of 1998; and the order dated
17.01.2007 in Review WPMP No.31880 of 2006, it is pertinent to note
that this Court has directed the respondent Corporation to consider
the previous service of 12 years for the purpose of promotion, pay
fixation etc., by making it clear that the petitioner is not entitled to
backwages. The claim of the petitioner before the respondent
2003 (2) SCC 212
Corporation for payment of arrears of difference in salary is an
erroneous presumption as the order dated 08.03.2004 in WP No.10985
of 1998; and the order dated 17.01.2007 in Review WPMP No.31880 of
2006, are unequivocal that the petitioner is not entitled to backwages.
The Hon'ble Supreme Court in S.Narsagoud (1 supra) held as follows:
"There is a difference between an order of reinstatement
accompanied by a simple direction for continuity of service and a
direction where reinstatement is accompanied by a specific direction
that the employee shall be entitled to all the consequential benefits,
which necessarily flow from reinstatement or accompanied by a
specific direction that the employee shall be entitled to the benefit of
the increments earned during the period of absence. In our opinion,
the employee after having been held guilty of unauthorised absence
from duty cannot claim the benefit of increments notionally earned
during the period of unauthorised absence in the absence of a
specific direction in that regard and merely because he has been
directed to be reinstated with benefit of continuity in service.
The Regulations referred to hereinabove clearly spell out that the
period spent on the extraordinary leave or leave without pay or a
period of over- stayal after the expiry of leave or joining time cannot
count towards increments; unless the order of the competent
authority sanctioning the extraordinary leave or leave without pay or
the order commuting the period of over-stayal into extraordinary leave
or leave without pay is accompanied by a specific order to count the
period for increments. A period of unauthorised absence from duty
treated as a misconduct and held liable to be punished by way of
penalty cannot be placed on a footing better than the period of
extraordinary leave or leave without pay or a period of over- stayal.
Ordinarily, the increments are earned on account of the period
actually spent on duty or during the period spent on leave the
entitlement to which has been earned on account of the period
actually spent on duty. The direction of the High Court entitling the
respondent to earn increments during the period of unauthorised
absence from duty though held liable to be punished in departmental
inquiry proceedings would amount to putting a premium on the
misconduct of the employee."
8. In the instant case, the Award of the Labour Court nor this
Court directs the respondent Corporation to grant increments for the
unserved period either notionally or actually with monetary benefit.
The orders of this Court dated 08.03.2004, and 17.01.2007 in the writ
petition and review WPMP, respectively, are to the effect that the
previous service shall be taken into consideration only for the purpose
of promotion and fixation of pay etc., and not for backwages. The order
passed by this Court in WP No.10985 of 1998; and the order dated
17.01.2007 in Review WPMP No.31880 of 2006, are specific on the
aspect that the petitioner is not entitled to backwages, and further
there is no specific direction to grant increments for the unserved
period. In this context, the judgment of the Hon'ble Supreme Court in
S. Narsagoud (1 supra) is relevant as the same clinches the issue. The
Hon'ble Supreme Court held in S. Narsagoud (1 supra) held that
"increments are earned on account of the period actually spent on duty
or during the period spent on leave the entitlement to which has been
earned on account of the period actually spent on duty". In the instant
case, the petitioner's previous service was directed to be considered on
humanitarian grounds for the purpose of "promotion and fixation of
pay", which makes it clear that the previous service of the petitioner
shall be accounted towards promotion, and if he is promoted, the pay
fixation shall be as per the rules governing pay fixation on promotion.
As per the law laid down by the Hon' ble Supreme Court in S.
Narsagoud (1 supra), the petitioner having been reinstated after
removal from service, cannot place himself in a better position than a
person who availed leave and lost/deferred increments as he did not
actually perform duty during the relevant period. In the instant case,
the petitioner was removed in the year 1995 and reinstated in the year
1997. The direction of this Court is only to the extent of considering
the earlier service for the purpose of promotion and fixation of pay etc.,
in WP No.10985 of 1998; and in Review WPMP No.31880 of 2006,
however, the same cannot be construed as if the petitioner is entitled
to increments / notional increments to claim arrears of difference in
pay. When there is a directed by this Court that the petitioner is not
entitled to backwages, no claim that would give rise to monetary
benefit in whatever form, either notional or actual, for the unserved
period, can be entertained by the authorities. In that view of the
matter, I do not find any illegality in the action of 2ndrespondent in
rejecting the claim of the petitioner.
9. Accordingly, the writ petition is dismissed. No costs.
Miscellaneous petitions if any pending, shall stand closed.
_____________________________
Justice Nagesh Bheemapaka
31st July, 2024
ksm
