THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.23986 OF 2006 DATED NOVEMBER, 2010 BETWEEN N.Pandaiah … Petitioner And The Depot Manager, APSRTC, Bus Depot, Shadnagar, Mahabubnagar District. … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.23986 OF 2006 ORDER: By Award dated 23.11.2005 in I.D.No.38 of 2005, the Labour Court-III, Hyderabad, directed the Andhra Pradesh State Road Transport Corporation (APSRTC) to reinstate the petitioner in service as a casual Conductor without any other benefits. Aggrieved by the denial of continuity of service, back wages, etc., the petitioner is before this Court. The petitioner entered the service of the APSRTC as a casual Conductor on 29.01.1997 after due process of selection. By proceedings dated 09.04.1998, the APSRTC appointed him as a temporary Conductor Grade-II on the time scale of Rs.2405-Rs.5158 with effect from 01.01.1998. The petitioner was subjected to disciplinary proceedings in connection with certain irregularities allegedly committed by him while he was conducting the bus service from Shadnagar to Adangula on 16.01.1998. Under charge sheet dated 23.01.1998, three charges were framed against him: “1. For having violated the rule issue & start which constitutes misconduct under Reg.28(vi-a) of APSRTC Employees (Conduct) Regulations, 1963. 2. For having failed to collect the fare and issue tickets to 15 passengers found alighting at Leymamidi who boarded the bus at Keshampet ex-stages 06 to 07 which constitutes misconduct under Reg.28(vi-a) of APSRTC Employees (Conduct) Regulations, 1963. 3. For having failed to close the S.R. in all denos., against stage No.7 even after the stage No.7 arrived which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Regulations, 1963.” Dissatisfied with his explanation, a domestic enquiry was initiated in the matter. By report dated 20.05.1998, the Enquiry Officer held against the petitioner on all the charges and he was removed from service by order dated 23.06.1998. The petitioner filed an appeal aggrieved thereby. Complaining that the same was kept pending, he approached the Labour Court by way of the subject I.D. filed under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’). Before the Labour Court, the APSRTC filed a counter stating that the petitioner’s appeal was rejected on 19.08.2003. On merits, the APSRTC contended that the charges levelled against the petitioner were duly proved with supporting evidence and that no grounds were made out for interference by the Labour Court. As the petitioner did not dispute the validity of the domestic enquiry, the Labour Court examined the findings recorded against the petitioner in the context of the evidence adduced in the said enquiry. The admitted facts were that the bus was carrying 51 passengers at the time of the check and 15 passengers had not tendered ticket fare and were found ticketless. According to the petitioner these passengers, being a group, boarded the bus, not at the stage but en route between stages 6 and 7. The petitioner was found to have issued tickets to the 16 passengers who boarded the bus at stage 6. The petitioner, in his spot statement (Ex.M.2), stated that he was in the process of issuing tickets to the 15 ticketless passengers when the check took place. The TTI also admitted that the petitioner might have been in the process of issuing tickets to the said passengers. Further, the petitioner had not closed the SR against stage 7 as the issuance of the tickets to these passengers was still in progress. This aspect, as rightly held by the Labour Court, clearly supported the version put forth by the petitioner. The Labour Court therefore held that the most serious of the three charges, being charge 2, was not proved. Charge 3, being consequential, was also held not proved. The Labour Court was of the opinion that the petitioner had only committed a mistake in respect of these two charges and the same would not amount to misconduct as alleged. The petitioner was however found to have violated the rule of ‘issue and start’ and the Labour Court accordingly held that charge 1 was duly proved. In that view of the matter, the Labour Court opined that the punishment of removal from service imposed on the petitioner was disproportionate. Being under the impression that the petitioner was only appointed as a casual Conductor and had not been regularized in service, the Labour Court exercised its discretion under Section 11-A of the Act of 1947 and directed his reinstatement in service as a casual Conductor without any benefits. Sri V.Narsimha Goud, learned counsel for the petitioner, contended that the Labour Court erred in not noticing that the petitioner’s services had been regularized with effect from 01.01.1998 under the proceedings dated 09.04.1998. He submitted that the wrong impression carried by the Labour Court in this regard influenced it while granting the relief. He further submitted that once the petitioner was absolved of the serious misconduct alleged under charges 2 and 3, he ought not to have been denied the benefits of continuity of service and back wages. Sri C.Sunil Kumar Reddy, learned standing counsel for the APSRTC, on the other hand, argued that the petitioner was not entitled to claim the benefit of regularization under the order dated 09.04.1998 and that the Award of the Labour Court directing his reinstatement as a casual Conductor simpliciter did not warrant interference by this Court. Reference may be made to the counter filed by the APSRTC in the present writ petition wherein it is stated that the petitioner’s alleged misconduct on 16.01.1998 led to his being placed under ‘put off duty’ pending disciplinary action. It is on this basis that the APSRTC seeks to deny the petitioner the benefit of the decasualization/regularization conferred under the proceedings dated 09.04.1998. According to the counter, any casual employee who is kept under ‘put off duty’ would not be considered for appointment as per Regulations. It is further stated in the counter that after his reinstatement in service as a casual Conductor with effect from 16.06.2006, the petitioner was appointed on regular basis as a temporary Conductor Grade-II on 05.10.2007. The facts on hand demonstrate that the Labour Court found that no misconduct as alleged by the APSRTC under charges 2 and 3 was established. The only misconduct held proved against the petitioner was with regard to the violation of the rule of ‘issue and start’ under charge 1. Admittedly, these findings of the Labour Court have become final in so far as the APSRTC is concerned as it did not choose to challenge the same. Thus, presently, the only misconduct committed by the petitioner is the violation of the rule of ‘issue and start’, a comparatively trivial charge. Relevant to note, the Labour Court did not disbelieve the petitioner’s version that the batch of 15 ticketless passengers had boarded the bus en route between two stages and not at the stage itself. That being so, strictly speaking there could be no violation of the rule of ‘issue and start’ which would have applicability only to issuance of tickets at the boarding stages. Be that as it may, the gravity of this charge, even if established, would not warrant the punishment of denying the petitioner the benefit of his past service and also, the benefit of his decasualization under orders dated 09.04.1998. All the more so, considering the unexplained delay of about 5 years in the disposal of the petitioner’s appeal. In this regard, it may be noticed that this Court, time and again, deprecated the practice of the APSRTC in resorting to placing employees under ‘put off duty’. No such punishment or procedure is provided for under the APSRTC’s Regulations and such a practice, not being sourced in law, can have no legal consequences. Therefore, the so-called placing of the petitioner under ‘put off duty’ pending the disciplinary action into the misconduct alleged against him while conducting the bus service from Shadnagar to Adangula on 16.01.1998, cannot have any legal effect, much less that of nullifying the benefit conferred on him under the proceedings dated 09.04.1998. Relevant to note, it is not the case of the APSRTC that the proceedings dated 09.04.1998 were cancelled thereafter in so far as the petitioner is concerned. The said order continued to stand as it was. That being so, the benefit which accrued thereunder to the petitioner cannot be denied to him on wholly untenable and illegal grounds. The assumption of the Labour Court that the petitioner was not regularized in service is therefore without legal basis. Once the petitioner stood covered by the proceedings dated 09.04.1998, he is deemed to have been decasualized and placed on a regular time scale. The reliance placed by the APSRTC in this regard on GHAZIABAD DEVELOPMENT AUTHORITY v. VIKRAM CHAUDHARY[1] is wholly misconceived as the said decision has no applicability to the facts of the case on hand. Viewed thus, the denial of the petitioner’s past benefits in their entirety by the Labour Court is unsustainable in law. However, it is to be noticed that the petitioner failed to make an averment before the Labour Court that he was not gainfully employed during the period he remained out of the service of the APSRTC. In view of the law laid down by the Supreme Court in J.K.SYNTHETICS LTD. v. K.P.AGRAWAL[2] it is necessary for the workman 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. It is only thereafter that the burden would shift to the employer. Though the petitioner herein made such an averment in the affidavit filed in support of this writ petition, no such pleading was advanced before the Labour Court. This Court in exercise of certiorari jurisdiction would therefore not entertain a new plea. Viewed thus, the petitioner would not be entitled to back wages. The petitioner shall however be entitled to be treated as a decasualized Conductor in accordance with the proceedings dated 09.04.1998 with effect from 01.01.1998 with continuity of service for all purposes along with attendant benefits but without arrears of monetary benefits. The Award dated 23.11.2005 in I.D.No.38 of 2004 on the file of the Labour Court-III, Hyderabad, shall stand modified to the extent indicated above. The Writ Petition is accordingly allowed in part. No order as to costs. ____________________ SANJAY KUMAR, J. _______ NOVEMBER, 2010. VGSR [1] (1995) 5 SCC 210 [2] (2007) 2 SCC 433