Telangana High Court

The Depot Manager, vs P.Yadagiri, on 6 March, 2024

Author: Abhinand Kumar Shavili

Bench: Abhinand Kumar Shavili

                                    1



      * THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI


                               AND

      THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                    +W.A. No.1398       OF 2016


% 06-03-2024

# The Depot Manager, APSRTC, Medak

                                                    ....Appellant

Vs.

P. Yadagir and another.
                                                     .... Respondents

!Counsel for the petitioner     :       Sri A. Srinivas Reddy

Counsel for the Respondent No.1 : Sri A.G. Satyanarayana Rao




<Gist :

>Head Note:

? Cases referred:
                                    2



        IN THE HIGH COURT FOR THE STATE OF TELANGANA
                             HYDERABAD

                                 ****

                   W.A. No.1398 OF 2016

Between:

# The Depot Manager, APSRTC, Medak
                                                      ....Appellant
Vs.

P. Yadagir and another.
                                                       .... Respondents
ORDER PRONOUNCED ON: 06.03.2024

     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

1.     Whether Reporters of Local newspapers
       may be allowed to see the Judgments?              : Yes

2.     Whether the copies of judgment may be
       Marked to Law Reporters/Journals?                : Yes

3.     Whether His Lordship wishes to
       see the fair copy of the Judgment?               : Yes




                                  _____________________________________
                                  NAMAVARAPU RAJESHWAR RAO, J
                                       3




      THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                                    AND

     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                    WRIT APPEAL No.1398 OF 2016

JUDGMENT:

(Per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)

This Writ Appeal is filed aggrieved by the order dated

28.09.2016 passed by the learned Single Judge in W.P.No.28690 of

2016.

2. Heard Sri A. Srinivas Reddy, learned Standing counsel for the

appellant and Sri A.G.Satyanarayana Rao, learned counsel for the 1st

respondent-workman.

3. The brief facts of the case are as follows:

(1) The 1st respondent was working as a Cleaner in APSRTC,

Medak. While so, on 06.08.1981, he was directed to drive a

bus bearing No.AAZ-1560 to attend the relief work of another

bus which failed en-route. The 1st respondent drove the bus

bearing No.AAZ-1560 to the outer gate, where the Security

Guard found five pipes meant for supporting the roof, kept in

the Chassis of the bus. The Security Guard reported the matter

to the head Security Guard, and consequently, a report was

prepared and forwarded to the Depot Manager for necessary

action. Based on the said report, a charge sheet was issued to

the 1st respondent. A domestic enquiry was conducted and

basing on the report, the 1st respondent was removed from

service.

(2) Aggrieved thereby, the 1st respondent filed I.D.No.93 of

1992 (Old No.764 of 1987), and the same was disposed of vide

order dated 28.07.1993 holding that the charge levelled

against the 1st respondent was not proved and accordingly, the

order of removal was set aside. Consequently, the appellant

was directed to reinstate the 1st respondent into service

without a break in service, but without back wages.

Challenging the denial of back wages, the 1st respondent filed

W.P.No.18518 of 1995. This Court allowed the said Writ

Petition vide order dated 19.09.2006 by observing that the

Labour Court failed to give any reasons for denying the 1st

respondent's back wages when he was cleared from the alleged

delinquency. Aggrieved thereby, the appellants therein

preferred W.A.No.22 of 2007 before the Division Bench of this

Court, which upheld the judgment of the learned Single Judge,

vide judgment dated 18.12.2014.

(3) Thereafter, the 1st respondent filed E.P.No.14 of 2006

before the Labour Court-II, Hyderabad, seeking payment of an

amount of Rs.2,01,737.30ps., alleging that as per Regulation

21(2)(a) and (c) of the APSRTC Employees (CC&A) Regulations,

1967, whenever an employee is fully exonerated, the employee

is entitled to full pay and allowances to which he would have

been entitled had he not been removed; and the period of

absence from duty shall, for all purposes, be treated as a

period spent on duty, and accordingly sought for payment of

the enhanced wages consequent to revision of pay scales.

(4) The Labour Court vide order dated 15.06.2016 allowed

the E.P. with the following observations:

"...The calculation made by the respondent shows that the back wages of the petitioner was calculated basing on the last pay drawn by the petitioner but they have not calculated according to the Revision of Pay Scales in the years 1980, 1985, 1989 and 1993. It is to be noted that for every four years there is Revision of Pay Scales but the same was not applied to the petitioner which is erroneous. When the back wages was ordered by reinstating him into service, the petitioner is entitled for back wages as if he was in service. Therefore, the calculation memo filed by the petitioner is correct and the calculation memo filed by the respondent is not correct.

In view of the above discussion, the respondent has to pay an amount of Rs.2,01,737.30 ps., out of which the respondent has to deposit an amount of Rs.31,556/- to the P.F. trust towards employee and employer contributions. The respondent has not paid the said amount therefore; the petitioner is entitled to attach the property as referred in the schedule.

In the result, the petitioner is entitled to recover an amount of Rs.2,01,737.30 ps., out of which respondent has to contribute Rs.31,556/- towards P.F. Account for the contribution of employee and employer and the remaining amount of Rs.1,70,181.30 ps., has to be paid to the petitioner. The respondent has not only failed to calculate the back wages properly he also failed to pay the amount. Hence, the petitioner is entitled to attach the schedule property.

Issue attachment warrant under Order 21 Rule 43 on payment of process. Call on 15.07.2016."

(5) Challenging the same, the appellant herein filed

W.P.No.28690 of 2016 before this Court. The learned Single

Judge vide order dated 28.09.2016, dismissed the Writ Petition

upholding the order of the Labour Court in E.P.No.14 of 2006,

by observing as follows:

"The instant case is not a case of unauthorised absence but a case of theft. The labour court held the departmental enquiry as vitiated and set aside the order of removal. The workman was ordered to be reinstated in service without break in service and the denied backwages were awarded by this court which means that he continued to be in service. Consequently he is entitled to all benefits which a regular employee gets. In view of the above

discussion, and the law laid down by the Hon'ble Supreme Court, I have no manner of doubt to hold in favour of the workman entitling him to the Revised Pay Scales consequent to his reinstatement in service pursuant to the award of the Labour Court and holding to be entitled to the benefits of back wages by this Court in the Writ Petition filed by the workman. Consequently, the order passed by the Labour Court in E.P. No.14 of 2006 dated 15.06.2016 is upheld and the Writ Petition is dismissed. There shall be no order as to costs."

(6) Aggrieved thereby, the appellant filed the present Writ

Appeal.

4. Learned Standing counsel for the appellant contended that the

Labour Court-II, Hyderabad, which is the executing Court, granted

relief which is not mentioned either in the I.D. Award or in the order

passed by the learned Single Judge in W.P.No.18518 of 1995, which is

impermissible, and as per the settled principle of law, an Executing

Court cannot go beyond the decree in execution proceedings. He

further contended that the Labour Court-II in I.D.No.93 of 1992 (Old

I.D.No.764 of 1987) dated 28.07.1993, did not grant the relief of back

wages and other attendant benefits to the 1st respondent. Further, the

award passed by the Labour Court-II in I.D.No.93 of 1992 was

modified by this Court in W.P.No.18518 of 1995 only to the extent of

granting back wages.

5. Learned Standing counsel for the appellant further contended

that the 1st respondent has claimed an amount of Rs.2,01,737-30ps

as per the calculation memo filed by him in E.P.No.14 of 2006.

However, as per the calculation sheet of the appellant, the respondent

is entitled only to the difference in wages after applying the Revision of

Pay Scales as per the judgment of the learned Single Judge dated

28.09.2016. He further contended that even after applying the

Revision of Pay Scales to the 1st respondent for his out of service

period, he will not be entitled to annual increments in the absence of

granting attendant benefits. Moreover, the said attendant benefits

were neither granted by the Labour Court nor by the learned Single

Judge in W.P.No.18518 of 1995. The learned Single Judge under the

impugned order ought to have considered the fact that the 1st

respondent did not make any claim for increments before this Court

earlier, and it was sought only before the Executing Court for the first

time.

6. Learned Standing counsel for the appellant further contended

that the learned Single Judge ought to have considered the fact that

the calculation memo filed by the 1st respondent in E.P.No.14 of 2006

was of the year 2006, which contains many calculation errors. He

contended that the 1st respondent had filed the calculation memo

which included yearly increments to which he was not entitled, and

further, the same was not granted by the Labour Court in its order

dated 28.07.1993, or by the learned Single Judge in its judgment in

W.P.No.18518 of 1995 dated 19.09.2006. Thus, the non-granting of

increments or attendant benefits was never challenged by the 1st

respondent.

7. Learned Standing counsel for the appellant further contended

that the Execution Petition itself was not maintainable, as the 1st

respondent ought to have filed an application under Section 33-C(2) of

the Industrial Disputes Act, 1947 (for short, "the Act") to determine

the amount payable to him by the appellant.

8. Learned Standing counsel for the appellant further contended

that the learned Single Judge ought to have considered that there is a

variation in the amount payable by the appellant according to its

calculation and the amount claimed by the 1st respondent in his

calculation memo. The 1st respondent has included annual increments

for which he is not entitled. Therefore, appropriate orders be passed in

the Writ Appeal by setting aside the order dated 28.09.2016 passed in

W.P.No.28690 of 2016 and allow the Writ Appeal.

9. On the other hand, learned counsel appearing for the 1st

respondent filed a counter-affidavit stating that the learned Single

Judge has rightly upheld the order of the Labour Court passed in

E.P.No.14 of 2006. Once the Labour Court comes to a conclusion that

the 1st respondent is not guilty of the charges levelled against him, the

entire proceedings conducted against him would become infructuous

and the 1st respondent must be deemed to be on duty for all practical

purposes.

10. Learned counsel appearing for the 1st respondent further

contended that since the Labour Court denied the back wages, the 1st

respondent filed W.P.No.18518 of 1995 before this Court. The learned

Single Judge rightly allowed the said writ petition by holding that the

1st respondent is entitled for back wages along with other service

benefits, which the Labour has already awarded. The same was

confirmed by the Division Bench of this Court in W.A.No.22 of 2007.

Therefore, the learned Single Judge has rightly dismissed the Writ

Petition and there are no grounds to interfere with the impugned order

passed by the learned Single Judge and the Writ Appeal is liable to be

dismissed.

11. This court, having considered the rival submissions made by the

learned counsel for the respective parties, is of the considered view

that the 1st respondent approached the Labour Court-II, Hyderabad,

and filed I.D.No.93 of 1992 (Old I.D.No.764 of 1987) challenging the

removal order passed against him. The Labour Court, while disposing

of the said I.D., observed the following in its order dated 28.07.1993:

"5. In view of the above discussion and in the result, it had to be held that the charge against the petitioner is not proved and the order of

removal is therefore set aside. The respondent is directed to reinstate the petitioner into service without break in service but without back wages in the circumstances of the case."

12. The Labour Court, vide order dated 28.07.1993, had directed the

appellant to reinstate the 1st respondent into service, without any back

wages. This Court, vide its order dated 19.09.2006, modified the said

order to the extent of granting back wages to the 1st respondent, along

with other service benefits. The same was upheld by the Division

Bench of this Court in W.A.No.22 of 2007 on 18.12.2014. Pursuant to

the same, the 1st respondent filed E.P.No.14 of 2006 in I.D.No.93 OF

1992. The said E.P. was ordered on 15.06.2016 directing to issue

attachment warrant under Order 21 Rule 43 CPC on payment of

process. The same was challenged in W.P.No.28690 of 2016 and the

learned Single Judge dismissed the said writ petition on 28.09.2016.

13. The Labour Court ought not to have passed the order in

E.P.No.14 of 2006, since as per the settled principle of law, an

Executing court cannot go beyond the decree in the execution

proceedings. As such, the learned Single Judge ought not to have

upheld the validity of the same, since the 1st respondent had directly

filed the said E.P. without filing an application under Section 33-C(2)

of the Act to determine the amount payable to him by the appellant.

The 1st respondent ought to have filed an application under Section

33-C(2) of the Act pursuant to the disposal of W.A.No.22 of 2007.

14. Section 33-C(2) of the Act reads as follows:

"(2)Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months:

Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit."

15. When a specific relief was available to the 1st respondent in the

form of filing an application under Section 33-C (2) of the Act, he

should have proceeded with the said relief instead of filing an

execution petition before the Labour Court. It is also pertinent to

mention that the Labour Court ought not to have entertained such an

execution petition and further, ought to have directed the 1st

respondent to seek the ordinary course of remedy available under

Section 33-C(2) of the Act. The mode of relief sought by the 1st

respondent is unsustainable, and the same ought to have been

rejected by the Labour Court-II at the very first instance. Further, the

learned Judge erred by upholding the validity of the order passed in

said E.P., and erroneously dismissed the Writ Petition. Therefore, the