THE HON'BLE MR JUSTICE R.SUBHASH REDDY Writ Petition No.25755 of 2000 ORDER: This Writ Petition is filed by the Driver, working in Andhra Pradesh State Road Transport Corporation, attached to Kavali Depot in Nellore District, challenging the award of the Labour Court dated 11-05- 2000 passed in I.D. No.28 of 1999 to the extent of not awarding back wages for the period during which he was out of service. On 23-06- 1998, the petitioner was on duty as driver on bus bearing No.AP 10 5342 on the route from Bangalore to Cuddapah. After reaching Madanapalle, Depot-2, the service Conductor and the passengers in the bus approached the on-duty Controller at Madanapalle, Depot-2, for change of Driver on the ground that the petitioner was driving the vehicle in zig zag manner and was in intoxicated condition. The fact-finding enquiry was conducted and the authorities found force in the complaint lodged against the petitioner. Thereafter, by initiating disciplinary proceedings, the petitioner was charge sheeted vide charge sheet dated 27-06-1998 by framing three charges. The charges framed in the disciplinary proceedings against the petitioner read as under: “1. For having driven the vehicle from Chinthamani to Madanapalli in drunken condition while discharging your duties on vehicle AP 10 Z 5342 on the route Bangalore to Cuddapah (Link at CDP) on 23-06-1998, which is nothing but gross-negligence while on duty causing services loss to the corporation and inconvenience to the traveling public which is misconduct in terms of the Reg.28 (ix-a) of APSRTC Employees (Conduct) Reg.1963. 2. For your failure to follow the standing instructions on the prohibition of consuming liquor while on duty which in turn resulted in embarrassing situation due to driving the vehicle with loss of control which is misconduct in terms of the Reg.28 (xvi) read with charge (xvii) of APSRTC Employees (conduct) Reg.1963. 3. For having created commotion among the traveling public by your act of unbalanced driving in intoxicating mood and thereby tarnished the image of corporation among public in terms of Reg.28 (xxxi) of APSRTC Employees (conduct) Reg.1967.” 2. For the aforesaid charges, petitioner submitted his explanation and as the explanation was not satisfactory, a regular enquiry was conducted by appointing Enquiry Officer, as per the APSRTC Employees Classification Control and Appeal Regulations. The Enquiry Officer, who conducted the regular enquiry, has submitted his report holding that the petitioner was guilty of the charges. After issuing show cause notice dated 05-10-1998 and by considering the explanation filed by the petitioner, by order dated 22-10-1998 passed in proceedings No.01/118(19)/98-KVL, petitioner was removed from the service. As against the order of removable, the petitioner filed an appeal before the appellate authority, but the appellate authority also rejected his appeal confirming the order of removal. Thereafter, he raised a dispute by filing an application under Section 2-A (2) of the Industrial Disputes Act, 1947, which was examined in I.D. No.28 of 1999 before the Labour Court, Guntur. The Labour Court has passed the impugned award by award dated 11-05-2000 by directing the reinstatement of the petitioner into service with continuity of service, but without back wages. 3. In this Writ Petition it is argued by Sri S.M.Subhan, the learned counsel appearing for the petitioner, that without recording any valid reasons, back wages were denied to the petitioner. It is submitted that the case of the petitioner was not referred to the Medical Officer so as to examine medically whether the petitioner was in intoxicating condition on that day when he was driving the bus on 23-06-1998. It is submitted that as much as the order of removal is based on no evidence, the Tribunal ought to have ordered for payment of back wages also. 4. On the other hand, it is submitted by the learned standing counsel for the respondent corporation that in this case when the complaint was submitted by the service Conductor along with the passengers, Breath Analyzer Test was conducted and it gave positive result. It is submitted that in view of the documentary and oral evidence on record, the Enquiry Officer has recorded finding that charges are proved and based on the same, order of removal was passed. Though the Tribunal in the impugned award has approved the finding with regard to misconduct, but taking into account past unblemished service rendered by the petitioner, it has ordered reinstatement into service by denying back wages. 5. With regards to rival contentions, in this case, it is to be noted that on the transit, on 23-06-1998, when the petitioner was driving the bus from Bangalore to Cuddapah, a complaint was lodged not only by the service conductor of the bus, but also by the passengers. When the on- duty Controller at Madanapalle Bus Station complained of by the passengers, immediately the petitioner was subjected to Breath Analyzer Test, which has given positive result. Though it was the case of the petitioner that such test results were consequent to using the drugs for the stomachache developed, but he could not place any material in support of his defence. Though it is contended by the learned counsel that the petitioner was not referred to Medical Officer, merely because petitioner was not examined by the Medical Officer, that itself is no ground to accept his defence, in view of the test conducted from the Breath Analyzer. Positive result shown by the Breath Analyzer is also sufficient to record a finding that the petitioner was intoxicated. Fortunately, no untoward incident happened till they reach Madanapalle Bus Station, at which place a complaint was lodged not only by the passengers, but also by the service Conductor and based on such complaint by the service Conductor and passengers, the petitioner was subjected to the test at that stage by changing the driver from that place to drive to the destination point. Even the Tribunal has looked into the material before the Enquiry Officer and even after re-appreciation of evidence, it has come to the same conclusion that the petitioner was in intoxicated condition, as such misconduct alleged against him was proved. Even though such findings are recorded by the Tribunal, but taking into account his past service, it has ordered reinstatement of the service by giving the benefit of continuity of service. As the charges were proved in the enquiry, which amounts to serious misconduct, which is also accepted by the Tribunal, this Court is of the view that the Tribunal rightly negatived for award of back wages to the petitioner. In a case of this nature, if any award of back wages will amount to putting the premium on the misconduct committed by the delinquent employee and punishing the employer as held by the Hon’ble Supreme Court in J.K.Synthetics Ltd. Vs. K.P.Agrawal.[1] 6. For the aforesaid reasons and in view of the ratio laid down by the Hon’ble Supreme Court in the judgment referred to above, I do not find any merit in the writ petition. The Writ Petition is devoid of merit. 7. Accordingly, the Writ Petition is dismissed. No order as to costs. ____________________ R.SUBHASH REDDY, J. 20th February, 2009. Skmr IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 25755 of 2000 Between: S.K. Basha, S/o. Galib Saheb R/o. Kodavaluru, Nellore District. ..... PETITIONER AND 1 The Labour Court, Rep by its Regional Manager, Nellore Region, Nellore. 2 The A.P.S.R.T.C., Rep by its Regional Manager, Nellore Regional, Nellore District. 3 The Depot Manager, A.P.S.R.T.C., Kavali, Nellore District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an Order or direction more particularly one in the nature of Writ of Certiorari by calling for the records relating to and in connection with the award of the Labour Court, Guntur in ID.No.28 of 99, dt. 11-5-2000 which was published in the Gazette vide G.O. Rt No. 1350 dt. 10-7-2000 as illegal, unjust and contrary to well established principles of law and against to the principles of natural justice and as such liable to be quashed with a consequential direction to pay the arrears of the wages for the period out of employment i.e from 22-10-98 to 31-07-2000 along with the difference of arrears of retiremental benefits forthwith and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.S.M.SUBHAN Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : [1] (2007) 2 SCC 433