IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO And THE HON'BLE MR JUSTICE G.V.SEETHAPATHI WRIT APPEAL NO : 845 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 02/11/2001 in WP No. 18614 of 1995 on the file of the High Court.) Between: 1 Md.Ismail(died) 2 Tajunnisa, W/o.late Md.Ismail 3 Md. Mubeen Pasha, S/o.late Md. Ismail, 4 Md. Muneem Pasha, S/o.late Md.Ismail, 5 Miss Nasheela Sultana, D/o.late Md.Ismail, Petitioners 2 to 5 are brought on record as Legal representatives of deceased Petitioner No.1 As per court order dated 06.10.1998 in WPMP No.19419/97. ..... APPELLANTS AND 1 The Deputy Chief Traffic Manager(T), presently Senior Manager Traffic(Traffic), APSRTC, Musheerabad, Hyderabad. 2 The Managing Director, Vice-Chairman, APSRTC, Musheerabad, Hyderabad. 3 The Presiding Officer, Labour Court-I, Hyderabad .....RESPONDENTS Counsel for the Appellants: MR.P.R.PRASAD Counsel for the Respondents: GP FOR LABOUR The Court made the following: THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G. V. SEETHAPATHY WRIT APPEAL NO.845 OF 2002 ORDER: (per G.V.S.,J) This writ appeal is filed against the judgment dated 02.11.2001 in W.P.No.18614 of 1995, wherein the said petition filed by the appellants herein was dismissed. 2. Heard the learned counsel for the appellants and the learned standing counsel for the respondent Corporation and perused the records. 3. The first appellant herein was admittedly an employee of the respondent Corporation and he was working as Traffic Inspector, Grade II at Headquarters. He was suspended on 21.03.1984 and a charge sheet was issued on 13.08.1984 framing two charges, which are as follows: “1. Mis-using your official position by cheating persons with a promise of securing a job in APSRTC either to them or to their family members as per the particulars furnished in the annexure to this charge sheet after having demanded and accepted money as consideration for securing the job which amounts to misconduct under Regulation 28(xv) of APSRTC Employees(Conduct) Regulations, 1963. 2. Taking of Rs.6,900/- as loan from Sri Shaik Ahmed Jani, S/o. Sri Abdul Rajack, resident of Repalle on executing a promissory note in the year 1981, which amounts to misconduct under Regulation 18 of APSRTC Employees (Conduct) Regulations, 1963.” Subsequently, after completion of the departmental enquiry, the appellant was removed from service. Assailing the same, he approached the Labour Court-I and the Tribunal by order dated 15.03.1994 in I.D.No.348 of 1991, set aside the order of removal and directed the respondent-Corporation to reinstate him into service, but, however, without any backwages and attendant benefits, but with continuity of service, within one month from the date of publication of this award. Questioning the same, the first appellant herein filed the Writ Petition No.18614 of 1995. Subsequent to filing of writ petition, the first appellant died and his legal representatives were brought on record as petitioners-appellants 2 to 5. In the writ petition, the appellant mainly questioned the award to the extent of denial of payment of backwages. The learned single Judge, by the impugned judgment, upheld the finding of the Labour Court that the first appellant is not entitled for payment of backwages in view of the fact that the second charge stood proved against him and accordingly, the writ petition was dismissed. Hence, the present appeal. As seen from the award passed by the Labour Court in respect of Charge No.1, relating to collection of amounts by the first appellant on the pretext of securing jobs, no evidence was placed and the said charge remained unsubstantiated and therefore, the first appellant was totally exonerated of the said charge. The second charge related to borrowal of amount of Rs.6,900/- by the first appellant from one Shaik Ahmed Jani, S/o. Sri Abdul Rajack, on execution of a promissory note in the year 1981. The respondent- Corporation contended that borrowal of the amount by the employee of the Corporation amounts to misconduct within the meaning of the Conduct Rules and, therefore, in view of the admission of the said borrowal by the first appellant, the said charge stood proved. As per APSRTC Employees (Conduct) Regulations, 1963, relating to the Conduct Rules prescribed to all the employees of the Corporation, it prohibits borrowal by the employee only from persons or firms having dealings with the Corporation. The said regulation states as follows: “Provided that an employee may accept a purely temporary loan, free of interest, from a personal friend or relative or operate a credit account with a bonafide standsman.” It is not the case of the respondent-Corporation that the amount of Rs.6,900/- was borrowed by the first appellant from any person, who was having any sort of dealing with the Corporation or that Shaik Ahmed Jani, from whom the first appellant borrowed the said amount by executing a promissory note was in any way connected in discharge of the official duties on the part of the first appellant as employee of the Corporation or the said borrowal in any way has come in the way of discharge of such duties or that the first appellant caused loss, prejudice or acted detrimental to the interest of the Corporation. When that is so, in the absence of any prohibition from borrowal by an employee from any other person, who has no concern or dealing with the Corporation and when such borrowal is not shown to have caused any loss or prejudice, or was detrimental to the interest of the Corporation, the said borrowal could not amount to misconduct on the part of the employee. The proviso 2 of Regulations 18 states that an employee may accept a purely temporary loan, free of interest, from a personal friend or relative or operate a credit account with a bonafide standsman. From the above proviso, it is clear that borrowal of money by an employee to meet his necessity is not totally prohibited and the said borrowal is, in fact, permissible. But, the first appellant had borrowed money for his necessity on execution of a promissory note from Shaik Ahmed Jani. It is not the case of the respondent- Corporation that the said borrowal was in any way prejudicial to the Corporation. It has also not placed any evidence before the labour Court as well to show that such borrowal was detrimental to the interest of the Corporation and, therefore, amounts to misconduct under any of the regulations. In fact, the learned single Judge has also observed that the labour Court has not elaborately discussed before coming to the conclusion about Charge No.2 and that the said charge is proved, but, however, stated that the fact remains that the petitioner has not let in any evidence to disprove the same. If the Corporation intends to contend that the borrowal by the first appellant was prohibited under any of the regulations or is violative of any of the conduct rules, it is for the Corporation to establish the same by adducing necessary evidence in that regard and the burden does not shift on to the first appellant to establish that the borrowal by him does not come within the ambit of the conduct rules. The Corporation, not having adduced any such evidence and the labour Court also, not having recorded any specific finding to the effect that the said charge is proved withholding of backwages, is unwarranted. In Para 9 of the award, the labour Court has stated that the “conduct of the petitioner amounts to a misconduct within the meaning of employees” conduct rules, which conduct of the petitioner has also resulted in this complaint and enquiry. But however, such a nature of misconduct established would not require the respondent to remove him from service. But to make all other employees of the A.P.S.R.T.C. conduct themselves properly, it would be necessary to impose a punishment that would be a reminder to other employees to conduct themselves properly. Consequently, I find it is a fit case where it would be sufficient if the petitioner is directed to be reinstated without any backwages and attandant benefits.” It can, therefore, be seen that though no evidence has been placed by the Corporation to substantiate the said charge and though there is no specific finding that the said charge stands established, still the Labour Court has chosen to withhold backwages by way of punishment and that too to serve as a deterrent to other employees, which is totally unwarranted. In the circumstances of the case, it is held that the denial of payment of backwages to the first appellant on his reinstatement is unsustainable and the impugned order is, therefore, held liable to be set aside. Accordingly, the writ appeal is allowed and the appellants 2 to 5, who are the legal representatives of the deceased first appellant, are held entitled to all backwages on account of reinstatement of the first appellant into service of the respondent-Corporation. The respondent-Corporation is directed to settle the claim of the appellants in respect of backwages and pay the same to appellants 2 to 5 who are the legal representatives of the deceased first appellant, within three months from the date of receipt of a copy of this order. _________________ B. PRAKASA RAO, J. ___________________ G. V.SEETHAPATHY, J. 26th August 2009 Rns. ........REGISTRAR To 1 The Deputy Chief Traffic Manager(T), presently Senior Manager Traffic, APSRTC, Musheerabad, Hyderabad 2 The Managing Director, Vice-Chairman, APSRTC, Musheerabad, Hyderabad. 3 The Presiding Officer, Labour Court-I, Hyderabad 4 2 CD copies