IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.15743 of 2001 BETWEEN The Depot Manager, APSRTC, Jaggaiahpet Depot and another. ... PETITIONERS AND S. Sreundera Rao and another. ...RESPONDENTS Counsel for the Petitioners: MR. K. SATYANARAYANA MURTHY Counsel for the Respondents: MR. S.M. SUBHAN The Court made the following: ORDER: This writ petition is filed by the APSRTC/management against the award of the Industrial Tribunal – cum – Labour Court, Guntur in I.D.No.163 of 1995 dated 10.10.2000 whereunder the tribunal had set aside the order of termination passed against the first respondent dated 09.03.1994 and directed reinstatement of the first respondent with full backwages and continuity of service. 2. The facts, in brief, are as follows: (a) While the first respondent was working as driver at Jaggaiahpet depot, while driving APSRTC bus bearing No.AP 9 Z 4635 on the route Jaggaiahpet – Machilipatnam, an accident occurred resulting in death of two persons and injuries to one. On the bass of spot inspection report by the Assistant Manager, Traffic, Jaggaiahpet, the Depot Manager placed the first respondent on suspension on 07.08.1993 and called for his explanation on the charges as under: 1) For having driven the vehicle bearing No.AP 9 Z 4635 on the route Jaggaiahpet – Machilipatnam on 23.7.93 in a rash and negligent manner resulting in the death of two persons near Sri Venkateswara Service Station (Petrol Bunk) Nandigam at about 06.20 hours which constitutes misconduct viz Clause no.28 (ix-a) of APSRTC Employees’ (Conduct) Regulations, 1963. 2) For your lack of anticipation while driving the vehicle bearing No.AP 9 Z 4635 on the route Jaggaiahpet – Machilipatnam on 23- 7-93 which resulted in the death of two persons near Sri Venkateswara Service Station (Petrol Bunk) Nandigama at about 6.20 hours which constitutes misconduct vide clause no.28(xxxii) of APSRTC Employees’ (Conduct) Regulations, 1963. (b) The enquiry was, thereafter, held after examining the explanation dated 11.08.1993 of the first respondent and on finding that the charges are established; a show cause notice dated 16.02.1994 for removal was given. After considering the explanation of the first respondent dated 04.03.1994 against the said proposed punishment, an order of removal dated 09.03.1994 was passed. Against the said order, the first respondent filed an appeal but the same was dismissed on 20.03.1995, which gave rise to the dispute being raised by the first respondent in I.D.No.163 of 1995 before the tribunal. 3. Since the said ID resulted in setting aside the punishment and reinstatement of the first respondent with all benefits, the petitioner – management questioned the said award in this writ petition, primarily, on the ground that the tribunal had committed serious error in disagreeing with the enquiry officer’s report and has committed error in re-appreciating the evidence in reaching its own conclusions. It was also contended that when the charges were grave and when they were established in the domestic enquiry, the tribunal ought not to have re- appreciated the entire evidence to reach a contrary conclusion. It was also contended that the nature of punishment was commensurate with the gravity of the misconduct as well as the past record of the first respondent and as such, granting reinstatement with full backwages and benefit of continuity of service amounts to putting a premium on the misconduct of the first respondent. 4. Learned counsel for the first respondent, on the contrary, submits that independent evidence of two witnesses was adduced by the first respondent, one of whom was a process server working in Munsif Magistrate Court, Nandigama and another a Development Officer of LIC of India. The respondent contended that the said two witnesses have witnessed the accident and have categorically stated that the scooterist came in the opposite direction and gave signal to turn to the left side and therefore, the first respondent driver brought the vehicle to the middle of the road but the scooterist himself came and hit the bus on the right side. It is also contended that the evidence of the witnesses examined on behalf of the petitioner – management including the conductor of the bus were not eyewitnesses. When the rash and negligent driving alleged against the first respondent was denied and evidence was lead by both sides, appreciation thereof coupled with the fact that the first respondent was acquitted in criminal case, supports the finding of the tribunal that the charges were not proved. Learned counsel also contends that consequent on finding that there is no evidence in support of the charges and when there is no misconduct established against the first respondent, the punishment of removal automatically renders unsustainable and the tribunal was justified in directing reinstatement with all benefits. The rival contentions are also supported by relevant case law by the learned counsel for the petitioner – management, reference to which will be made appropriately hereafter. 5. When this writ petition was heard on 09.12.2010 on the request of the petitioner’s counsel, I had adjourned it to enable him to produce the enquiry report and in spite of adjourning the hearing on about six occasions for that purpose, the petitioner’s counsel has expressed inability to trace out and produce the enquiry report. The writ petition was, therefore, heard on the last date of hearing on merits and reserved for judgment. 6. The question, therefore, that falls for consideration is as to whether the award of the tribunal is vitiated and suffers from an error of jurisdiction in re- assessing the evidence adduced before the enquiry officer and arriving at its own conclusions. 7. The Supreme Court had an occasion to consider the said question in USHA BRECO MAZDOOR SANGH v. MANAGEMENT OF USHA BRECO LIMITED[1] and the relevant paras 29 to 31 and 33 thereof are as under: 29. Indisputably, in the event, fresh evidence is adduced before the Labour Court by the Management, the Labour Court will have the jurisdiction to appreciate the evidence. But, in a case where the materials brought on record by the Enquiry Officer fall for re- appreciation by the Labour Court, it should be slow to interfere therewith. It must come to a conclusion that the case was a "proper" one therefor. The Labour Court shall not interfere with the findings of the Enquiry Officer only because it is lawful to do so. It would not take recourse thereto only because another view is possible. Even assuming that, for all intent and purport, the Labour Court acts as an appellate authority over the judgment of the Enquiry Officer, it would exercise appropriate restraint. It must bear in mind that the Enquiry Officer also acts as a quasi-judicial body. Before it, parties are not only entitled to examine their respective witnesses, they can cross-examine the witnesses examined on behalf of the other side. They are free to adduce documentary evidence. The parties as also the Enquiry Officer can also summon witnesses to determine the truth. The Enquiry Officer can call for even other records. It must indisputably comply with the basic principles of natural justice. 30. While determining the issue as to whether the workman is guilty of misconduct alleged to have been committed by him or not, the workman would be entitled to raise all contentions including the contention of lack of bona fide or unfair labour practice as also acts of victimization on the part of the Management. Even evidences in that behalf can be laid. Save and except, however, for sufficient and cogent reasons, neither the Enquiry Officer would arrive at a finding in regard to lack of bona fide or victimization or unfair labour practice on the part of the management; the Labour Court while considering the said findings would ordinarily not do so. Such a question must be appropriately raised. Materials must be brought on records to establish the said allegations. 31. It is one thing to say that the finding of an Enquiry Officer is perverse or betrays the well-known doctrine of proportionality but it is another thing to say that only because two views are possible, the Labour Court shall interfere therewith. In other words, it is one thing to say that on the basis of the materials on record, the Labour Court comes to a conclusion that a verdict of guilt has been arrived at by the Enquiry Officer where the materials suggested otherwise but it is another thing to say that such a verdict was also a possible view. 33. Before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of preponderance of probability has been met. The approach of the Labour Court appeared to be that the standard of proof on the Management was very high. When both the parties had adduced evidence, the Labour Court should have borne in mind that the onus of proof loses all its significance for all practical purpose. 8. In the light of the above ratio, if we examine the impugned award it is evident that the findings of the enquiry officer was based upon the evidence of witnesses on behalf of the petitioner – management viz. the Deputy Superintendent (Traffic); P. Nageshwara Rao – Assistant Engineer (M); K.V. Ratnam, conductor of the bus and A.K. Chary – mechanic. The first respondent examined Mr. David Raju, process server and Mr. K.V.S.K. Ramakantha Rao, Development Officer, LIC of India and S.K. Salim, resident of Nandigama. The tribunal has rejected the said evidence adduced on behalf of the petitioner – management on the ground that the conductor of the bus did not speak of the manner in which the accident occurred and other witnesses reached the spot after the accident to make enquiries and to verify the damage to the bus. Their evidence having been excluded the tribunal accepted the evidence of the process server and the development officer examined by the first respondent. As per the defence of the first respondent while he was driving the bus at the time of the accident, two persons riding a scooter came at a high speed and gave indicator to turn right. He, therefore, turned the bus to the left side but the scooterist came and dashed against the headlight of the bus. Though two persons died and one person received injuries, the witness examined on behalf of the first respondent claimed that on seeing the scooter on the opposite direction turn towards right, the bus was brought to the middle of the road and the collusion between the scooter and the bus was on the right side of the bus. The said two witnesses examined by the first respondent put the blame squarely on the scooterist. 9. The Deputy Superintendent examined by the petitioner – management spoke of his reaching the accident spot on receiving telephonic message and has observed the scene of offence and recorded the statement of witnesses and submitted report to the Depot Manager, Jaggaiahpet. The tribunal, therefore, has preferred the other view as propounded by the first respondent that he cannot be held guilty of rash and negligent driving when the negligence is on the part of the scooterist. The tribunal also was of the opinion that the injured person in the accident, who was examined in the criminal Court, was not examined by the petitioner – management and reached the conclusion that there is no evidence of rash and negligent driving on the part of the first respondent. The fact, however, remains that the glass of the bus was broken and right side portion was bent inside and obstructed the brake pedal, clutch and the accelerator as per the evidence of the mechanic, who deposed. The tribunal, however, has not appreciated that if the bus was not in a high speed the said massive damage to the bus would not have occurred merely because the scooterist came and hit, as alleged by the first respondent. The two witnesses, on whom the first respondent has relied upon, have, no doubt, supported the first respondent but they also say that the bus was brought to the middle of the road and the on coming scooter hit on the right side. While the enquiry officer was of the opinion that the charge of rash and negligent driving was established against the first respondent, charge No.2 showing lack of anticipation was also established resulting in misconduct vide clause 28 (xxxii) of the regulations, referred to above. The tribunal, however, came to hold an opposite view on re-appreciation of evidence. 10. As held by the Supreme Court in USHA BRECO MAZDOOR SANGH’s case (1 supra), referred to above, the jurisdiction of the tribunal does not permit re-appreciation of evidence and based on that it cannot be concluded by the tribunal that there is no material before the enquiry officer. Thus, the conclusion of the tribunal holding that the charges and the misconduct are not established against the first respondent is clearly unsustainable. Consequently, the tribunal also committed serious error in substituting the punishment of removal by that of reinstatement with full backwages and continuity of service. 11. In J.K. SYNTHETICS LTD v. K.P. AGARWAL[2] the Supreme Court held that there cannot be automatic reinstatement nor the relief of backwages and continuity of service automatically follows on setting aside of the punishment. On analysis of several decisions, the Supreme Court held in paras 17 and 18 as follows: 17. There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud (2003) 2 SCC 212; A.P.S.R.T.C. v. Abdul Kareem (2005) 6 SCC 36 and Rajasthan R.T.C. v. Shyam Bihari Lal Gupta (2005) 7 SCC 406 . 18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back-wages, in addition to the several factors mentioned in Rudhan Singh (supra) and Udai Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. Applying the aforesaid ratio to the facts of the present case, the relief of reinstatement as well as full backwages and continuity of service as granted by the tribunal is liable to be interfered with. 12. There is, however, an intervening circumstance, which has to be taken into consideration. The writ petition was admitted on 01.08.2001 and the impugned award was suspended. The said order of interim suspension was later modified on 12.09.2001 by making it absolute subject to the condition of petitioner depositing half of the backwages awarded with liberty to the first respondent to withdraw the same. Petitioner’s counsel, however, states that the first respondent, who was reinstated, has also withdrawn half of the backwages and recently, he has retired from service. 13. Thus, interference with the order of reinstatement passed by the tribunal below is now merely academic and to the extent of half of the backwages, which is already withdrawn by the first respondent, cannot be ordered to be recovered from the first respondent, as he is said to be retired on superannuation and it would be impracticable and unjust to permit the petitioner to recover the said amount from the first respondent after lapse of 10 years. In the circumstances, the writ petition is allowed to the extent of denying the remaining backwages to the first respondent in pursuance of the impugned award. However, the award to the extent of reinstatement with continuity of service and 50% of the backwages is not disturbed in view of subsequent events, as above. In the result, the writ petition is allowed in part. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 25, 2011 DSK [1] (2008) 5 SCC 554 [2] (2007) 2 SCC 433