Telangana High Court
The Depot Manager, Mahaboobnagar ... vs K. Ambaiah, Mahaboobnagar District And ... on 14 October, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 26843 OF 2008
O R D E R:
Aggrieved by the Award dated 14.02.2008 in I.D
No. 65 of 2006 on the file of the Labour Court-III, Hyderabad,
this Writ Petition is filed.
2. The case of the Corporation is that the 1st
respondent is bereft of any clean record of service; his annual
increments were deferred 2 times and he was removed once for
his misconduct. Petitioners contend that the 1st respondent was
removed from service by order dated 20.04.2005 on the charge
of causing fatal accident with the auto, in which, one passenger
of auto died and two others received multiple injuries. Appeal
and Review preferred thereagainst were rejected by the
Divisional Manager and Regional Manager vide proceedings
dated 23.09.005 and 09.03.2006 respectively. Therefore, the 1st
respondent raised the subject I.D., wherein the learned Labour
Court directed to reinstate the 1st respondent into service with
continuity of service and full back wages.
3. Learned Standing Counsel for the Corporation Sri
R. Anurag submits that the reasoning given by the Labour
Court is bad and contrary to record, hence, the Award
impugned is liable to be set aside. Pursuant to the Award, the
1st respondent was reinstated into service on 12.06.2008 and
posted at Kalwakurthy Depot. Placing reliance on the judgment
of the Hon'ble Supreme Court in Allahabad Bank v. Avtar
Bhushan Bhartiya 1, learned Standing Counsel submits that in
the first instance, there is an obligation on the part of the
employee to plead that he is not gainfully employed and it is
only then the burden would shift upon the employer to make an
assertion and establish the same. Since, in this case, the 1st
respondent did not plead the said aspect, he is not entitled to be
granted back wages.
4. While issuing rule nisi, by order dated 10.12.2008,
this Court granted interim stay of impugned Award to the extent
of full back wages and other attendant benefits only. The docket
sheet discloses that notice was not served on the 1st respondent
and there was no appearance on his behalf.
5. Perused the material on record. In the impugned
Award, the learned Labour Court observed that M.Ws.1 and 2 -
management witnesses did not state that accident occurred due
to the rash and negligent driving of the bus; M.W.1 also did not
depose that basing on the rough sketch, it can be presumed
(2022) 13 SCC 202
that bus was being driven in a rash and negligent manner
without following the traffic rules leading to accident; as
deposed by M.W.1, skid marks of bus tyres were not there on
the spot when he inspected the spot, so it cannot be said that
bus was moving fast, as such, on applying brakes, skid marks
occurred; if really bus was running in a high speed and dashed
auto, then auto which was a small vehicle must have been
thrown out of the road, but the sketch shows that auto was on
the road after the accident and bus went into fields. In such
circumstances, the Labour Court was of the opinion that the
case of driver of bus that to avoid further damage and harm to
auto as well as persons who involved in the accident, he moved
the bus inside the fields and also to avoid collision of bus to
electrical pole which existed by the side of the road, he moved
the bus to the agricultural fields, cannot be discredited. It was
therefore, held that the domestic enquiry officer as well as the
officials of Corporation were not justified in coming to the
conclusion and holding that driver was guilty of the charges.
Furthermore, pursuant to the Award, the 1st respondent was
reinstated into service on 12.06.2008 and posted at
Kalwakurthy Depot. This Court does not therefore, find any
reason to interfere with the said findings, in the absence of any
material to the contra.
6. However, as far as the argument of learned
Standing Counsel that employee did not plead that he is
gainfully employed, hence, awarding full back-wages is wrong is
concerned, in Allahabad Bank's case (supra), the Hon'ble
Supreme Court made a mention of the propositions elucidated
in Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya {(2013) 10 SCC 324}, which reads as under:
" 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 the 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, onus lies
on the employer to specifically plead and prove that employee was
gainfully employed and was getting the same or substantially similar
emoluments.'
7. In this case, admittedly, the 1st respondent did not
plead before the adjudicating authority or the Court of first
instance i.e. Labour Court that he is not gainfully employed or
was employed on lesser wages. If the employee shows that he
was not employed, the onus lies on the employer to prove
contra. In the absence of any such pleading by the 1st
respondent driver, this Court is of the considered opinion that
Labour Court is not justified in awarding full back-wages. The
Award impugned therefore, requires modification to that extent.
8. The Writ Petition is accordingly, allowed in part.
The Award dated 14.02.2008 is modified to the extent that the
1st respondent is not entitled to full back-wages, mean to say,
the 1st respondent is denied back wages. Rest of the Award is
in-tact. No costs.
9. Consequently, miscellaneous Applications, if any
shall stand closed.
-------------------------------------
NAGESH BHEEMAPAKA, J
14th October 2024
ksld
