Telangana High Court
M.D., Apsrtc, Hyd. And 3 Ors. vs B. Narayana And Ano. on 11 November, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 39257 OF 2015
O R D E R:
The State-owned Road Transport Corporation (for
short, 'the Corporation'), challenging the Award of the Labour
Court - II, Hyderabad in ID No. 83 of 2013, dated 27.04.2013, to
the extent of directing reinstatement of the 1st respondent as a
Conductor at entry-level without any benefits of service, despite
the established acts of serious misconduct, filed this Writ
Petition.
2. The case of the Corporation is that the 1st
respondent faced multiple instances of disciplinary action,
including deferment of annual increments on twenty-three
occasions and receiving censure on seven occasions for various
acts of misconduct. In addition, he was removed from service on
two occasions in 1996 and 1997, for unauthorized absenteeism,
but subsequently was reinstated with penalty of postponing his
increments with cumulative effect.
The matter at hand stems from the discovery of
serious financial irregularities involving the 1st respondent
during an inspection by Sri K.N. Rao, the Deputy Chief (E) of
Nizamabad-II Depot, who was scrutinizing the STAR (ticketing
system) documents. On detecting anomalies, an investigation
was initiated, led by Sri N. Sayanna, Assistant Manager (T) of
Nizamabad-II Depot. A preliminary inquiry was conducted,
during which statements from the 1st respondent and Sri K.N.
Rao were recorded. Following the inquiry, a report was
submitted on 30.12.2011 to the Corporation. The inquiry
revealed significant cash and ticket irregularities committed by
the 1st respondent between 20.10.2011 and 03.11.2011, leading
to issuance of charge sheet alleging nine charges on
04.01.2012. The 1st respondent was placed under suspension
pending inquiry. The sum and substance of the charges is 'on
20.10.2011, while performing his duty with STAR
No.097/867206, the 1st respondent issued 28 tickets of Rs.40/-
worth Rs.1120/- that were not assigned to his tray, failing to
remit the corresponding revenue. Similarly, on 27.10.2011, while
performing duty with STAR No.106/810131, he sold 10 tickets
worth Rs.600/- without remitting the proceeds. Further charges
included issues on 28.10.2011, 31.10.2011, 01.11.2011,
02.11.2011, and 03.11.2011, where the 1st respondent recycled
tickets from previous duties, issued tickets beyond the
designated block, and misappropriated revenue, with a total
defrauded amount of Rs.8500/- over the period of the
irregularities'.
The 1st respondent acknowledged the charge sheet
on 06.01.2012 and requested certain documents related to the
case, which were duly provided by the Corporation on
21.02.2012. The explanation dated 07.02.2012 submitted by
him was found to be unsatisfactory. As a result, the Disciplinary
Authority ordered a formal domestic inquiry. After conducting
enquiry, on 31.05.2012, the Inquiry Officer submitted report,
confirming that the 1st respondent was guilty of the charges.
Since no objections were submitted, a show-cause notice for
removal from service was issued on 28.06.2012, and after
considering the explanation, the Disciplinary Authority passed
the order of removal from service on 19.07.2012.
Dissatisfied, the 1st respondent filed Appeal, which
was rejected on 20.09.2012, so also the Review on 14.02.2013.
In further pursuit, the 1st respondent filed a Mercy Petition
before the 2nd petitioner, which was rejected on 30.05.2013.
Subsequently, he raised the subject Dispute before the Labour
Court. The Labour Court, in its order dated 25.11.2014, held
that the domestic inquiry was valid and complied with all legal
requirements. The 1st respondent had committed serious
misconduct and was guilty of the charges levelled against him.
Despite acknowledging the gravity of actions and their
intentional nature, the Labour Court directed that the 1st
respondent be reinstated as a fresh conductor at the entry level
without any of the service benefits. The reinstatement was to be
subject to the 1st respondent starting afresh in the organization,
essentially treating him as a new employee.
3. Learned Standing Counsel for the Corporation Sri
Anurag submits that Labour Court's direction to reinstate the
1st respondent, albeit at a lower level, is unjustified in view of
the severity and intentional nature of misconduct. He argues
that the 1st respondent's actions were not mere lapses but
deliberate acts of misappropriation, which resulted in significant
loss to the Corporation. Learned Standing Counsel emphasizes
that such serious misconduct, involving financial fraud and
breach of trust, should not warrant reinstatement under any
circumstances. According to him, Labour Court, despite finding
the misconduct to be of serious nature and justifying the
removal from service, erred in granting reinstatement without
service benefits, as it undermines the integrity of the
disciplinary process and sets a precedent for leniency in cases of
significant financial misconduct.
4. This Court, while admitting the Writ Petition, by
order dated 03.12.2015, granted interim suspension as prayed
for. It observed that the Labour Court-II, Hyderabad while
upholding the charge levelled against the 1st respondent and
affirming the punishment of dismissal imposed, issued direction
for his appointment as fresh Conductor. Once disciplinary
action is taken and punishment imposed is upheld, question of
granting further direction to appoint him as a fresh conductor,
prima facie, is erroneous.
5. Pending Writ Petition, the 1st respondent had taken
out W.P.M.P.No. 14014 of 2016 seeking payment of wages last
drawn including its allowances as mandated under Section
17-B of the Industrial Disputes Act (for short, 'the Act'). To the
said Application, the Corporation filed counter denying the
allegation that the 1st respondent was not gainfully employed
from the date of his removal from service on 19.07.2012, despite
his best efforts. It is contended that simply filing a claim for
17-B wages is not sufficient to prove that he was not gainfully
employed during the period after his dismissal. Under Section
17-B, onus is on the workman to provide evidence showing that
he has not been employed during the period in question. The
Corporation further elaborates on the provision of Section 17-B
which mandates that 'if a Labour Court, Tribunal or National
Tribunal orders reinstatement of a workman and the employer
challenges the Award in the High Court or Supreme Court, the
employer must pay the workman full wages last drawn during
the pendency of the proceedings, provided the workman was not
gainfully employed during the period. The workman must file an
affidavit affirming that he has not been employed, and if the
employer can prove that the workman was gainfully employed
and receiving adequate remuneration, the Court may deny
payment of wages under Section 17-B for that period'.
Therefore, learned Standing Counsel argues that burden of
proof rests on the 1st respondent to establish that he was not
employed during the period after the award was passed. Since
the workman has not submitted any records or concrete
evidence to demonstrate that he was not gainfully employed
after the Award, the Corporation contends that the claim for
17-B wages should be rejected. The workman's vague and
unsubstantiated statement claiming that he remained
unemployed due to his inability to find work is insufficient to
meet the requirements set forth by Section 17-B.
Furthermore, he has not disclosed how himself and
his family managed to survive during the period following his
removal. Learned Standing Counsel further argues that Section
17-B is a welfare measure designed to provide financial support
to workman whose reinstatement is delayed due to legal
proceedings. He points out, however, that in the present case,
Labour Court's Award directed workman's reinstatement
without back-wages and the workman would have been
reinstated as a fresh Conductor at a lower pay scale than the
salary he last drew. Therefore, even if the Award had been
implemented, he would have faced loss of wages, as his
reinstatement would have been at a lower pay level. Learned
Standing Counsel asserts that proportionality of loss of wages
should be considered when evaluating the 1st respondent's
claim for 17-B wages. Learned Standing Counsel, in this
context, relies on the judgment of the High Court of
Maharashtra in U.P. State Bridge Corporation Ltd. v.
Maharashtra General Kamgar Union 1 and of the Hon'ble
Supreme Court in National Gandhi Museum v. Sudhir
Sharma 2.
6. Learned counsel for the 1st respondent Sri
V. Narsimha Goud relying on the judgments of the Hon'ble
Supreme Court in Novartis India Limited v. State of West
2008 (4) Mh.L.J.
(2021) 12 SCC 439
Bengal 3, submits that the fact that workman survived and did
not die of starvation itself could not be a ground for denying
back wages to them. Even an unemployed person has a right to
survive. He may survive on his past savings, may beg or borrow
but so long as he has not been employed, back wages, subject
to just exceptions, should not be denied. He further relied on
the judgment in Joint General Secretary Workman, Indian
Airports Kamgar Union, Begumpet, Hyderabad v. Airports
Authority of India, Hyderabad 4 and contends that legality of
the Award cannot be examined in an Application under Section
17-B of the Act. According to the learned counsel, the scope of
enquiry is very limited and restricted in an Application under
Section 17-B of the Act and it is only to find out as to whether
the requirement under Section 17-B of the Act is satisfied or
not.
7. Upon careful review of the arguments presented by
both the parties, it is clear that the Labour Court's decision to
reinstate the 1st respondent, even at a lower entry-level position,
is not consistent with the gravity of the misconduct committed.
The 1st respondent's actions, involving deliberate financial
misappropriation amounting to Rs.8,500/-, in conjunction with
(2009) 3 SCC 124
2015(4) ALD 698
his long-standing record of repeated disciplinary infractions,
point to a clear pattern of misconduct that severely undermines
the trust and fiduciary responsibility inherent in his role as a
conductor with the Corporation. The Labour Court, while
acknowledging the seriousness of the 1st respondent's
misconduct, erred in directing his reinstatement, albeit at the
entry-level, without considering the totality of his actions. This
could potentially encourage employees to take advantage of the
system, knowing that even grave offenses might be subject to
lighter sanctions. In view of the same, this Court is of the
opinion that the Labour Court rightly took the decision to
remove the 1st respondent from service and the order of
removal was in line with the Corporation's duty to maintain
discipline, protect its financial interests, and ensure the
integrity of its operations. Moreover, it is pertinent to note here
that this Court, while granting interim suspension, observed
that once disciplinary action is taken and punishment imposed
is upheld, the question of granting further direction to appoint
the workman as a conductor, prima facie, is erroneous.
8. As regards payment of wages under Section 17-B is
concerned, this Court is of the opinion that the 1st respondent
failed to provide sufficient evidence to prove that he was not
gainfully employed during the period of legal proceedings. The
onus of proof rests on the workman, and the 1st respondent's
vague statements about his unemployment does not meet the
requirements under Section 17-B of the Act. Though learned
counsel for the workman relied on the judgments cited supra,
this Court is of the opinion that the 1st respondent has failed to
comply with the basic requirement enumerated in Section 17-B.
He has not filed any affidavit to vouch safe the fact that he was
not gainfully employed in the interregnum. In the counter-
affidavit filed by the Corporation it is, in clear and categorical
terms, stated that the 1st respondent has to substantiate the
claim that he was not gainfully employed and only then, the
primary onus of him is discharged and it shifts to management.
Admittedly, the 1st respondent no where pleaded nor whispered
how he sustained from the date of Award till filing the
Application and as per the present circumstances to claim the
right of 17-B wages, he has to prove how he is earning his
livelihood all these years without gainful employment. As rightly
contended by the learned Sanding Counsel, Section 17-B has
been included in the Act as a welfare measure to the workman
when his reinstatement is stalled by the proceedings before the
High Court of the Supreme Court, as such, the Secton17-B
wages were fixed based on last drawn pay, as he would have
been more benefitted if he is reinstated as per the Award.
However, it is to be noted, in the case at hand, order of removal
was conformed and the 1st respondent was reinstated as a fresh
conductor without any benefits of his past service. Further, in
view of the order of suspension granted by this Court, the 1st
respondent was not taken into employment as a fresh conductor
even till date. In the light of the same, viewed from any angle,
this Court is of the firm opinion that the 1st respondent's claim
for wages under Section 17-B must fail.
9. For the reasons outlined above, the Writ Petition is
allowed. The order impugned is hereby quashed. The 1st
respondent shall not be appointed as a fresh conductor
reinstated to service, and the petitioners' decision to terminate
his employment stands.
10. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
11th November 2024
ksld
