THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1028 OF 2002 DATED 10TH JUNE, 2010 BETWEEN C.Rami Reddy … Petitioner and The Addl. Industrial-cum- Addl. Labour Court, 1st Floor, Chandra Vihar Building, M.J.Road, Hyderabad. Reptd. by its Chairman. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1028 OF 2002 ORDER: Aggrieved by the denial of back wages and withholding of two annual increments without cumulative effect, the petitioner/ workman in I.D.No.170 of 1999 on the file of the Additional Industrial Tribunal-cum- Additional Labour Court, Hyderabad, challenges that part of the Award dated 04.05.2000. The petitioner/workman was removed from the post of Mechanic in the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) by order dated 19.01.1999 on the charge that he had reversed a bus in a rash and negligent manner without taking precautionary measures whereby a Conductor met with his death. The appeal filed by the petitioner/workman was rejected. He invoked Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) in I.D.No.170 of 1999. By Award dated 04.05.2000, the Labour Court held on evidence that the accident had not occurred due to the rash and negligent driving of the petitioner/workman and that the action of the APSRTC in removing him from service was not justified. Stating so, surprisingly the Labour Court directed his reinstatement in service with continuity of service but denied him back wages and also imposed upon him the punishment of withholding of two annual increments without cumulative effect. Having absolved the petitioner/workman of guilt in so far as the accident was concerned, it is inexplicable as to why the Labour Court thought it fit to substitute the punishment with that of withholding of two annual increments without cumulative effect along with denial of back wages. Once the foundation for the charge was held disproved, imposition of punishment did not arise. Apropos the issue of back wages, there is no discussion in the Award as to why the petitioner/workman was denied back wages. Relevant to note, the petitioner/workman specifically averred in his petition filed under Section 2-A(2) of the Act of 1947 that since the date of his removal he remained unemployed in spite of his best efforts. Significantly, this averment was not refuted by the APSRTC in its counter. The same is the state of affairs before this Court. The averment of the petitioner in the writ affidavit that he remained unemployed from the date of his removal till he was reinstated in service remained unrebutted in the counter filed by the APSRTC. Post J.K. SYNTHETICS LTD. V/s. K.P.AGRAWAL[1], grant of back wages is no longer considered an automatic and inevitable consequence of a direction of reinstatement. Several other factors need to be considered before such relief is granted. The same consideration must be manifest even in a case where the relief of back wages is refused, which is absent in the present case. In the context of gainful employment of the workman elsewhere during the period that he remained out of service, the Supreme Court in J.K. SYNTHETICS LTD. observed: “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.” Viewed thus, the petitioner discharged the duty cast upon him by making the necessary averments and it is the APSRTC which did not take trouble to discharge the burden of proof which shifted on to it. Therefore, the denial of back wages by the Labour Court is unsustainable. The unreported Judgment of a learned Judge of this Court in B.RAMULU V/s. THE PRESIDING OFFICER, LABOUR COURT-II, HYDERABAD[2] is placed before me wherein, faced with a similar situation on facts, the learned Judge observed: “9. Having given categorical finding that capsizing of bus was not on account of the fault of the petitioner, respondent No.1 very strongly invoked the doctrine of proportionality in the immediately following paragraph of the award. In my considered view the question of application of the doctrine of proportionality does not arise in a case where an employee is fully exonerated of the charges. It is only in cases where the employee is found guilty of one or more of the charges and the Court/Tribunal find that the penalty imposed on the employee is shockingly disproportionate to the gravity of misconduct proved that the doctrine of proportionality could be invoked. Therefore, the whole approach of the Labour Court in invoking the doctrine of proportionality and disallowing back-wages to the petitioner cannot be sustained at all. When once an employee is held not guilty of the charges framed against him and he is directed to be reinstated, ordinarily it should follow that he is entitled to all the attendant benefits including back-wages. It should be deemed that the punishment which is set aside on the finding of his not being found guilty was never suffered by him. On this premise, denial of back-wages in the instant case is wholly unjust.” The present case being similar to B.RAMULU, the Award of the Labour Court to the extent that it denied back wages to the petitioner/workman and imposed upon him the lesser punishment of withholding of two annual increments without cumulative effect is equally unsustainable. In the light of the finding of the Labour Court that the petitioner/workman was not responsible for the accident for which he was charge-sheeted and removed, it would be unfair and unjust to deny him back wages for the said period or visit upon him a lesser punishment. Though in the normal circumstances it would be equally unfair to mulct the employer with the liability of back wages for a period that an employee did not render service, it is to be noted that in the present case the petitioner remained out of the service of the APSRTC for lesser than two years and in the circumstances as demonstrated, for no fault of his. I am therefore not inclined to reduce the back wages payable to him for the said period. The writ petition is accordingly allowed directing the APSRTC to pay full back wages for the period that the petitioner/workman remained out of service and setting aside the direction to withhold two annual increments without cumulative effect. The Award dated 04.05.2000 in I.D.No.170 of 1999 on the file of the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad is modified to that extent. In the circumstances, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 10TH JUNE, 2010. PGS / VGSR [1] (2007) 2 SCC 433 [2] W.P.No.33311 of 1998 dt.19.09.2007