THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.1955 OF 2009 O R D E R Heard both the counsel. 2. The petitioner was appointed as Cleaner in the respondent – Corporation on daily wages on 28.8.1979 and his services were regularized on 1.1.1989. While so, on the ground that he is responsible for shortage of 1820 Kgs. of material, which amounts to misconduct as per the Regulation No.28(IX)(a) of A.P.S.R.T.C. Employees (Conduct) Regulations 1963, he was suspended by order dated 7.8.2002 and four charges were framed against him by proceedings dated 7.8.2002. The Enquiry Officer submitted report holding the petitioner guilty of the said charges and after calling for the explanation to the show cause notice, the petitioner was removed from service on 17.3.2003 and the subsequent appeal and the review preferred by him ended in rejection. Aggrieved by the same, he raised I.D.No.52/2004 on the file of Industrial Tribunal – cum – Labour Court at Warangal and by award dated 5.12.2004, the Tribunal holding that the charge framed against the petitioner are not proved, directed the respondent to reinstate the petitioner into service with continuity of service, but without back wages and other attendant benefits. Aggrieved by the denial of back wages, the petitioner filed the present writ petition. 3. The learned counsel for the petitioner vehemently contended that when the Tribunal has found that the charges against the petitioner are not proved, it is not justified in denying back wages and other attendant benefits without recording any reasons. He further contended that from the date of termination, till the date of reinstatement, the petitioner was not employed and was subjected to severe financial difficulties. In support of the contention, that when the petitioner is exonerated by the Labour Court, denial of back wages is not justified, he relied on the judgment of a learned single Judge of this court reported in B.RAMULU v. PRESIDING OFFICER, LABOUR COURT II, HYDERABAD[1]. 4. The 2nd respondent filed counter affidavit and wherein it is averred inter alia that when the Tribunal held that the domestic enquiry is valid, it is not open for it to re-appreciate the entire evidence on record and hold that the charges framed against the petitioner are not proved. It is further stated that the petitioner did not work for the period he is claiming back wages and on the principle of ‘no work no pay’ he is not entitled for back wages and however, the Tribunal rightly granted reinstatement without back wages and attendant benefits. 5. From the material available on record, it could be seen that the Tribunal, on appreciating the entire documentary evidence available on record, has categorically held that the charges against the petitioner are not proved. Challenging this finding, the Corporation has not preferred any writ petition before this court. From a perusal of the impugned award, it could be seen that the Tribunal has not recorded any reason for denying back wages to the petitioner. Therefore, I am of the view that denying back wages to the petitioner, when the charges against him are held to be not proved, is not justified. 6. In similar circumstances, in the decision cited supra, when a driver of the Corporation was terminated from service for causing accident, he challenged the same before the Labour Court. On appreciation of material evidence on record, the Tribunal fully exonerated the charges framed against him, but denied back wages by invoking the doctrine of proportionality. The facts further disclose that the driver therein had taken a specific plea that he was not gainfully employed any where from the date of termination and the said plea was not controverted by the Corporation. In these circumstances, this court held that denial of back wages by invoking doctrine of proportionality, is not proper and accordingly held that the petitioner therein is entitled to back wages from the date of termination till the date of reinstatement. The relevant portion of the judgment is extracted as under better appreciation: “9. Having given categorical find 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 of 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 instance is wholly unjust.” 7. From the facts of the present case, as already stated above, the Tribunal has held that the charges against the petitioner are not proved and when that is the case, denial of back wages, without recording any reasons is not justified. Therefore, I am of the view that the impugned award of the Tribunal to the extent of denying back wages needs to be set aside and accordingly the same is set aside. 8. With regard to percent of back wages, the Apex Court i n J.K.SYNTHETICS LTD. V. K.P. AGRAWAL AND ANOTHER[2], held as under: “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 G.M., HARYANA ROADWAYS v. RIDHAN SINGH {(2005)5 SCC 591: AIR 2005 SC 3966} and U.P. Brassware Corpn. Ltd. v. Uday Narain Pandey {(2006)1 SCC 479: (AIR 2006 SC 586)}. 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.” 9. In the present case, the contention of the respondent – Corporation in the counter is that the petitioner has not taken any plea before the Labour Court that he was not gainfully employed after the order of removal. Though in the writ petition the petitioner has averred that he was not employed any where from the date of termination till the date of reengagement, he has not specifically stated that he has taken such a plea before the Labour Court and he has not denied the averment made in the counter affidavit in this regard by filing any reply. 10. Therefore, for the foregoing reasons, the writ petition is allowed and having regard to the facts and circumstances and in the interest of justice, the respondents – Corporation is directed to pay fifty per cent of back wages to the petitioner from the date of termination i.e., 17.3.2003 till the date of reinstatement on 9.5.2007. No costs. AVS ------------------------------ 28--04--2011 [1] 2008 LAB.I.C. 155 [2] (2007)2 SCC 433