THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1182 OF 2005 27TH NOVEMBER, 2009 BETWEEN: The Depot Manager, APSRTC, Guntakal, Ananthapur District. … Petitioner and The Industrial Tribunal-cum-Labour Court, Ananthapur, rep. by its Presiding Officer, And another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1182 OF 2005 O R D E R The Andhra Pradesh State Road Transport Corporation (APSRTC) represented by its Depot Manager, Guntakal Depot, filed this writ petition challenging the Award dated 01.04.2004 passed by the Industrial Tribunal-cum-Labour Court, Anantapur, in I.D.No.179 of 2001. By the said Award, the Labour Court directed reinstatement of the Conductor, the second respondent herein, with continuity of service but with half of the back wages along with attendant benefits. It further imposed upon him the punishment of deferment of two annual grade increments without cumulative effect. Though served, the second respondent did not choose to put in his appearance before this Court in person or through Advocate. By order dated 01.02.2005, this Court granted interim suspension of the operation of the Award, subject to compliance with the provisions of Section 17-B of the Industrial Disputes Act, 1947. It is stated by Smt.W.V.S.Rajeswari, learned counsel for the petitioner-Corporation, that the second respondent has been reinstated in service. The substantial challenge mounted by the APSRTC against the Award is with regard to the grant of half of the back wages for the period that the second respondent remained out of service. The learned counsel pointed out that though there was no charge of misappropriation, it was to be noticed that out of the fourteen passengers travelling in the bus, nine passengers had not been issued tickets and the check was conducted at Stage No.5/6. Keeping in view this aspect and also the fact that the second respondent had not established before the Labour Court that he was out of employment during the period that he remained out of the APSRTC’s service, the learned counsel contended that the Labour Court was not justified in awarding half of the back wages. I find force in the contention advanced by the learned counsel for the APSRTC. The Labour Court found that the charge levelled against the Conductor was proved as he had allowed the passengers to travel in his bus with unconnected tickets. In the light of this finding, the conclusion of the Labour Court that there was no mala fide intention on the part of the Conductor is surprising. Be that as it may, the Labour Court interfered in the matter on the ground that the punishment imposed was disproportionate and accordingly, the order removing the Conductor from service was modified by imposing upon him the lesser punishment of deferment of two annual grade increments without cumulative effect. Thereupon, the Labour Court directed the APSRTC to reinstate the second respondent in service with continuity of service and other attendant benefits restricting his entitlement to back wages to half the amount due for the period that he remained out of service. The Award under challenge does not reflect that the second respondent averred and proved that he was out of employment during the period that he remained out of the service of the APSRTC. Grant of back wages is no longer considered to be an automatic consequence upon a direction of reinstatement. Several factors would have to be considered while granting back wages, including the aspect of the workman being gainfully employed during the relevant period and it is for the workman to aver and prove that he was out of gainful employment during such period. No such evidence was adduced by the second respondent in the present case. In these circumstances, the Labour Court was not justified in granting half of the back wages to the second respondent. Therefore, the Award under challenge is modified to the extent of holding that the second respondent is not entitled to any back wages for the period that he remained out of service. Except for this modification, the Award under challenge shall stand confirmed in all other respects. The writ petition is allowed in part to the extent indicated above. No costs. -------------------------- SANJAY KUMAR,J 27TH NOVEMBER, 2009 PGS THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1182 OF 2005 27TH NOVEMBER, 2009