THE HON'BLE SMT. JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO :2296 of 2005 Date: 2.11.2009 BETWEEN: The Charminar Cooperative Urban Bank Ltd., Hyderabad. … Appellant And L. Pentaiah, S/o. Laxmaiah. … Respondent THE HON'BLE SMT. JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO :2296 of 2005 ORAL JUDGMENT: (per Hon’ble Smt. Justice T. Meena Kumari) This writ appeal is directed against the order of the learned single Judge dated 3.8.2005 in Writ Petition No. 9576 of 2004, whereby and whereunder the learned single judge dismissed the writ petition filed by the appellant-writ petitioner. The facts in brief are that the respondent herein, who was appointed as Sweeper filed I.D. No. 34 of 2002 before the Industrial Tribunal-II, Hyderaad alleging that the appellant-bank has illegally terminated his services. He also prayed for a consequential direction to the appellan-bank herein to reinstate him into service with continuity of service with full back wages and other attendant benefits. While opposing the I.D., the respondent filed counter affidavit before the Tribunal stating that the appellant-bank has engaged the respondent as a Part-time Sweeper on temporary basis at its Bholakpur Branch and was entrusted with the limited work of sweeping the branch premises for about one hour before opening of the bank every day. It is further alleged that the respondent never used to work continuously and used to abstain himself from duties very frequently and alleging that he has been illegally terminated from service, he filed the aforesaid I.D. before the Tribunal. It is further stated that the respondent would not fall under the category of workman and hence the I.D. as filed is not maintainable. Basing on the pleadings, the Labour Court framed the following issues for consideration. 1) Whether the petitioner was terminated through oral order of the officials of the respondent or he himself abstained from duty since October, 1997. 2) If the petitioner was terminated from service whether such termination was justified ? 3) To what relief the petitioner would be entitled ? The respondent in order to prove its case, has examined himself as W.W.1 and got marked Exs. W1 to W6. On behalf of the appellant-bank, M.W.1 was examined and Exs. M1 to M4 were marked. During the course of enquiry, the respondent got himself examined as P.W.1. The Tribunal on a consideration of the oral and documentary evidence on record, passed an Award on 6.1.2004, directing the appellant-bank to reinstate the respondent into service with continuity of service and full back wages from 27.5.1997 excluding the payments made to him after taking him into service from 1.4.2003. It also directed the appellant to fix the pay scale of the respondent on par with the other sweepers, who are having experience of 7 or eight years. Assailing the said Award, the appellant- bank filed Writ Petition No. 9576 of 2004 before the learned single judge. The learned single Judge, by the order impugned dated 3.8.2005, has dismissed the writ petition while confirming the Award of the Labour Court. Hence, the present appeal. Learned counsel for the appellant-bank has contended that even though respondent has been appointed as Sweeper on hourly basis, the Tribunal erroneously directed the appellant-bank to reinstate him into service with full back wages and continuity of service. He also tried to point out that as Sweeper, the respondent has been drawing the salary of Attender on par with Mirza Yakub Ali Begum and S. Prakash Rao, who were appointed as Attenders on regular basis and in view of the said fact, the Tribunal ought not to have directed it to pay salary to the respondent on par with other regular attenders. While trying to bring to our notice of a Circular issued by the Commissioner and Registrar of Cooperative Societies, through which the Commissioner directed the appellant bank to down size the staff from the present strength of 450 to 150, he would submit that most of its branches have already been closed and the bank is running with limited staff and that too, with clerical staff only. He, therefore submitted that the learned single Judge without taking into consideration all these facts has erroneously confirmed the order of the Tribunal and prayed that the appeal be allowed and the impugned order be set aside. On the other hand, learned counsel for the respondent has supported the impugned order and stated that in pursuance of the interim order granted by a Division Bench of this Court on 12.12.2005 , an amount of Rs. 1.00 lakh has been deposited towards 50% of back wages and the remaining amount of back wages are required to be paid to him. He further stated that even though the respondent has been engaged as a Sweeper, he has been discharging the duties of Attender and as such he is entitled to the pay scale of Attender. He, therefore, submitted that the impugned order does not require any interference and the appeal be dismissed. We have gone through the material placed on record, including the impugned order. There is no dispute about the fact that the respondent has been engaged as Sweeper. There is also no dispute about the fact that the Tribunal through Award dated 6.1.2004, has directed the appellant-bank to reinstate the respondent into service with continuity of service and full back wages. However, it is seen from the record that even though the respondent has been reinstated into service as Sweeper and has been discharging the duties as such, he has been paid the pay scale admissible to the post of Attender. When there is a specific direction to reinstate the respondent only as Sweeper, we fail to understand how he is being permitted to draw the pay scale of Attender. Be that as it may, we are not inclined to go into the same at this juncture. It is seen from the record that the respondent has been paid 50% of the back wages pursuant to the interim order granted by this Court and the remaining amount of back wages still needs to be paid to him. Since the respondent has been drawing the pay scale of Attender since the date of his reinstatement, we are of the opinion that the balance back wages payable to the respondent are to be adjusted towards the salary already paid to him in the pay scale of Attender. Hence, we modify the Award of the Tribunal, as confirmed by the learned single Judge to that effect and direct the appellant-bank to give effect to this order with effect from 1.12.2009. It is needless to mention that no recovery should be made from the respondent while adjusting the amount of back wages. The appeal is allowed to the extent indicated above. No costs. ___________________ T.MEENA KUMARI,J Date: 2nd November, 2009 _________________ SANJAY KUMAR,J pnb