HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 12496 OF 2004 Dated 22nd October, 2009. Between The Depot Manager, APSRTC, Cantonment Depot, Secunderabad …..Petitioner and K.Veeraiah, E-105405 and ors ….Respondents. HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 12496 OF 2004 ORDER: The Depot Manager, Andhra Pradesh State Road Transport Corporation (for brevity, ‘APSRTC’), Cantonment Depot, Secunderabad, challenges the Award dated 07.01.2004 passed by the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad, in I.D.No. 62 of 2001, whereby it directed reinstatement of the first respondent (for brevity, ‘the Conductor’) in service with 50% back wages and continuity of service and imposed upon him only the penalty of stoppage of two annual increments with cumulative effect. The Conductor was initially appointed on contract basis in the service of the APSRTC on 21.08.1985. He was allegedly involved in cash and ticket irregularities on 16.10.1999 while conducting a service and was subjected to disciplinary proceedings. He was removed from service on 15.06.2000 which was confirmed in appeal on 30.09.2000 by the Divisional Manager, Secunderabad of the APSRTC. The review petition filed by the petitioner also met with the same fate of dismissal by the order dated 05.05.2001 passed by the Regional Manager, Hyderabad City Region of the APSRTC. Aggrieved thereby, the Conductor approached the Labour Court by way of the subject I.D. under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ’the Act of 1947’). By Award dated 07.01.2004, the Labour Court having found that the charges levelled against the Conductor were proved, not only by his own spot explanation but also by the enquiry report, thought it fit to interfere in the matter in exercise of its jurisdiction under Section 11-A of the Act of 1947. The Labour Court was of the opinion that the punishment of removal from service imposed on the Conductor was disproportionate to the misconduct proved against him, in as much as there was no monetary loss caused by the irregularities held proved against the Conductor. Therefore, the Labour Court, taking note of the age of the Conductor and the fact that he was appointed as long back as in the year 1985, considered it appropriate to direct reinstatement of the Conductor in service, with continuity of service for the purpose of retirement benefits along with 50% back-wages and directed imposition of the punishment of stoppage of two annual increments with cumulative effect. Aggrieved by the aforesaid decision of the Labour Court, the APSRTC is before this Court. In the light of the admitted facts, which clearly indicate that the Labour Court passed the Award in exercise of its discretionary jurisdiction conferred by Section 11-A of the Act of 1947 and in the light of the finding of the Labour Court that the punishment of removal from service imposed upon the Conductor was disproportionate to the charges held proved against him as no monetary loss was caused to the APSRTC, I am not inclined to interfere with the discretionary order passed by the Labour Court directing reinstatement of the Conductor in service with continuity of service and also the reduction in the punishment to the effect that two annual increments should be withheld with cumulative effect. It is however to be noticed that the Labour Court awarded 50% back- wages for the period that the Conductor remained out of service. Payment of back-wages is no longer an automatic and inevitable consequence of a direction of reinstatement. The judgment of the Supreme Court in J.K. SYNTHETICS LTD. V.. K.P. AGRAWAL[1] is of guidance in this regard. The Supreme Court held therein that a distinction would have to be drawn between ‘misconduct reinstatement’ and reinstatement occasioned by an ‘illegal termination’. The Supreme Court also detailed the various factors which would need to be taken into consideration while awarding back-wages to an employee for the period that he remained out of service. The Supreme Court was of the opinion that the Labour Court would have to balance the interest of the employer who would be mulcted with the liability of paying back-wages to an employee without utilising his services, and that of an employee who is thrown out of employment for the period that he was kept out of service. In the case of a ‘misconduct reinstatement’ where the reinstatement is directed on the ground of proportionality of punishment, though the misconduct is held established, a lenient view cannot be adopted in the matter of granting backwages. In the present case, it is clear that the misconduct alleged against the Conductor was held established and it is only on the ground of proportionality that the Labour Court interfered in the matter. This being a case of ‘misconduct reinstatement’, grant of back-wages would have to be examined in the light of the judgment of the Supreme Court in J.K. SYNTHETICS LTD. In the light of the principles adumbrated by the Supreme Court, this was not a case calling for any lenience in the matter of awarding back-wages. I am therefore of the opinion that the Labour Court was not correct in granting 50% back-wages without applying its mind to the issue in the proper perspective. Accordingly, the direction of the Labour Court to award 50% back-wages to the Conductor for the period that he remained out of service is set aside. The Award under challenge is confirmed in all other respects. The Writ Petition is allowed to the extent indicated above. The APSRTC is directed to implement the Award, if not already implemented, within a period of two months from the date of receipt of a copy of this order. No costs. --------------------- SANJAY KUMAR,J. DATE: 22-10-2009. Msnr. [1] (2007) 3 SCC 433