THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2274 OF 2004 DATED FEBRUARY, 2010 BETWEEN The Regional Manager, A.P.S.R.T.C., Visakhapatnam-530 004. And Others. … Petitioners And Tagarampudi Satya Rao And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2274 OF 2004 ORDER: The Officers of the Andhra Pradesh State Road Transport Corporation (APSRTC) call in question the Award dated 20.06.2003 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No.252 of 2002. By the said Award, the Labour Court directed the APSRTC to reinstate in service the first respondent along with back wages and continuity of service. The APSRTC was directed to pay back wages to the first respondent treating him as being in service continuously till 30.06.2003, the date of his retirement from service and to pay him retirement benefits as per Rules. The first respondent was appointed as a Conductor in the APSRTC on 05.12.1978. He was promoted thereafter as an Assistant Depot Clerk on 10.06.1988. During the year 1999, the APSRTC subjected him to disciplinary proceedings on the ground that he had submitted a false transfer certificate and imposed upon him the punishment of withholding an increment by reducing his basic pay for a period of one year with cumulative effect. The said punishment was implemented in the year 2000 itself. However, the APSRTC again subjected the first respondent to disciplinary proceedings on the very same ground and removed him from service under order dated 12.11.2001. His appeal against the said action was rejected by order dated 30.10.2002. Aggrieved thereby, he invoked the provisions of Section 2-A(2) of the Industrial Disputes Act, 1947 in I.D. No.252 of 2002. The APSRTC contested the claim of the first respondent. It was contended that the first respondent had furnished his date of birth as 01.07.1954 basing on the transfer certificate issued by M.G.M. High School, Visakhapatnam. However, the said certificate was found to be not genuine. Thereupon, the first respondent stated that he had wrongly filed the said certificate and produced the original transfer certificate which showed his date of birth as 01.07.1945. The APSRTC therefore sought to justify the disciplinary action taken against the first respondent owing to this lapse on his part which constituted misconduct. The Labour Court, upon examination of the material placed before it, came to the conclusion that the first respondent had committed the misconduct of furnishing a false certificate which indicated his date of birth incorrectly as 01.07.1954 while his actual date of birth was 01.07.1945. However, the Labour Court took note of the fact that the first respondent had already been punished for the said offence and therefore, found fault with the APSRTC in reopening the proceedings once again and imposing upon him the dire punishment of removal from service. The Labour Court placed reliance on a Judgment of the Bombay High Court in this regard, wherein it was held that if the parties were permitted to reopen cases in which departmental proceedings had already concluded, it would lead to disastrous consequences. Accordingly, the Labour Court interfered in the matter and granted the reliefs of reinstatement along with back wages and continuity of service to the first respondent. Thought the first respondent entered appearance in this matter through Sri A.Rama Rao, Advocate, the learned counsel did not choose to appear before this Court. The matter was heard in part on 02.02.2010 and was adjourned to 04.02.2010 to enable the learned counsel for the first respondent to put forth his arguments. However, he was absent on the said day also. Accordingly, the matter was directed to be posted for orders on 05.02.2010. Again on 05.02.2010, Sri A.Rama Rao, learned counsel, did not choose to appear. Hence, after hearing the concluding arguments of Sri K.Madhava Reddy, learned standing counsel for the APSRTC, the matter was reserved for orders. It is not in dispute that the APSRTC in the first instance, visited a lesser punishment on the first respondent for the very same misconduct. This punishment was imposed by the Depot Manager, APSRTC, Simhachalam. While so, it appears that the Deputy Chief Traffic Manager (Urban), APSRTC, Visakhapatnam, acting upon the instructions of his superior cancelled the earlier disciplinary proceedings and dealt with the case afresh. A charge sheet was issued to the first respondent once again on the very same allegations and basing thereupon, the order dated 12.11.2001 was passed removing the first respondent from service. As rightly pointed out by the Labour Court, no power or authority vested in the Deputy Chief Traffic Manager (Urban), APSRTC, Visakhapatnam, to undertake this step. The earlier round of disciplinary proceedings had already concluded and become final. Unless there was a specific Regulation or Rule authorizing the authority to cancel the said disciplinary proceedings and start afresh, he had no power to turn back the clock. Sri K.Madhava Reddy, learned standing counsel for the APSRTC, sought to place reliance on Regulation 30 of the APSRTC Employees (Classification, Control and Appeal) Regulations, 1967 (for short, ‘the Regulations of 1967’) to support his argument that the Deputy Chief Traffic Manager (Urban), APSRTC, Visakhapatnam, had the power to suo motu enhance the penalty imposed upon the employee. Regulation 30 of the Regulations of 1967 reads as under: “30. Corporation’s power of review: Notwithstanding anything contained in these Regulations, the Board or any authority specified by it on its behalf, may on its own motion or otherwise after calling for records of the case, review any order which is made or is appealable under these Regulations; and (a) impose any penalty or confirm, modify or set aside the order; or (b) remit the case to the authority which the order or to any other authority, directing such further action or enquiry as it considers proper in the circumstances of the case; or (c) pass such other orders as it deems fit: Provided that–– i) an order imposing or enhancing a penalty shall not be passed unless the employee concerned has been given an opportunity of making any representation which he may wish to make against such penalty; and” It is however to be seen that the Deputy Chief Traffic Manager (Urban), APSRTC, Visakhapatnam, did not resort to exercise of the power of review under Regulation 30. He did not ‘review’ the earlier disciplinary action taken against the first respondent by the Depot Manager, APSRTC, Simhachalam. On the other hand, he straight away cancelled the disciplinary action already taken and started the disciplinary proceedings from scratch. Such action was not authorized by Regulation 30 of the Regulations of 1967. It is also to be noticed that the first respondent himself produced the original transfer certificate indicating his correct date of birth. To that extent, his misconduct stood slightly mitigated. In such circumstances, I find no reason to interfere with the direction of the Labour Court in so far as his reinstatement in service is concerned. However, as regards the issue of back wages, the facts on record demonstrate that the first respondent was out of service from 12.11.2001 and as per his correct date of birth, he was to retire from service on 30.06.2003. The Labour Court passed the Award on 20.06.2003 and taking note of his imminent superannuation from service, the Labour Court directed the APSRTC to pay back wages to the first respondent treating him as being in service till 30.06.2003. Other than this, there is no discussion in the Award under challenge as to why the Labour Court directed payment of full back wages. Trite to state, the law on the issue of back wages has undergone a sea change and grant of back wages is no longer considered to be an automatic or inevitable consequence of a direction of reinstatement. Such an order cannot be passed mechanically by the Labour Court without applying its mind to the facts obtaining before it and examining the entitlement of the workman to grant of back wages. Several factors would have to be considered by the Labour Court in this regard, such as, the gainful employment of the workman during such period, the reasons for directing reinstatement, the nature of his employment, etc. No such exercise is apparent in the Award under challenge. It is however to be noticed that by interim order dated 09.02.2004, this Court directed the APSRTC to deposit half of the back wages awarded by the Labour Court. Thereafter, by order dated 04.08.2004, this Court permitted the first respondent to withdraw the amount so deposited without furnishing security. In such circumstances, keeping in mind the fact that the first respondent has already withdrawn 50% of the back wages awarded, I deem it fit and appropriate to limit the entitlement of the first respondent to 50% of the back wages payable from 12.11.2001 to 30.06.2003, which amount has already been withdrawn by him pursuant to the interim order of this Court. The Award under challenge shall stand modified to that extent and is confirmed in all other respects. The writ petition is allowed in part to the extent indicated above but, in the circumstances, without costs. ____________________ SANJAY KUMAR, J. ___________February, 2010. VGSR