IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT APPEAL NO : 755 of 2000 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated ______ in WP NO : 8274 OF 1997 on the file of the High Court.) Between: ..... APPELLANT AND .....RESPONDENT WRIT APPEAL NO : 775 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated in NO : OF on the file of the High Court.) Between: ..... APPELLANT AND .....RESPONDENT Counsel for the Appellant:MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent No.: SMT B.G. UMA DEVI The Division Bench of this Court made the following common judgment: THE HON’BLE SMT. JUSTICE T. MEENA KUMARUI AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN. WRIT APPEAL NOs. 755 & 775 OF 2000 COMMON JUDGMENT : (Per the Hon ‘ble Sri Justice Ramesh Ranganathan). 1. Both APSRTC and the Workman have preferred the writ appeals aggrieved by the order of the learned single Judge in WP.No.8274 of 1997, dated 07-3-2000. 2. The parties shall hereinafter be referred to as they are arrayed in the writ petition. 3. The petitioner-workman, on his being imposed the punishment of removal from service, approached the Labour Court under section 2- A (2) of the Industrial Disputes Act, 1947. The Labour Court not only upheld the validity of the domestic enquiry but also held that the charges levelled against the workman were established and that the punishment imposed by the respondents of removal of the workman from service was commensurate to the charges established. The Labour Court, accordingly, dismissed the Industrial Dispute raised by the workman and upheld the punishment imposed on him by the employer. 4. The learned single Judge, however, went into the proportionality of the punishment under section 11-A of the Industrial Disputes Act and, on consideration of all facts and circumstances, modified the order of the Labour Court and directed the second to reinstate the petitioner-workman as a fresh candidate. The learned single Judge clarified that the petitioner-workman was not entitled for any benefits of his past service. 4. Sri A.K. Jayprakash, learned counsel for the petitioner- workman, would submit that he is not pressing for the other reliefs and that it would suffice if the order of the learned single Judge was modified to the limited extent that the petitioner is held entitled for the benefit of continuity of serice and notional increments for the purpose of computing his terminal benefits. 5. A perusal of the award would show that no oral evidence was adduced either on behalf of the workman or on behalf of the employer. In the writ petition, among several other grounds, the petitioner- workman has also challenged the validity of the domestic enquiry. Sri A.K. Jayaprakash Rao, learned counsel for the petitioner, would contend that no witnesses were examined in the inquiry proceedings nor was the workman given an opportunity of cross-examining the witnesses whose statements recorded earlier were relied upon by the Enquiry Officer to hold that the charges levelled against the workman were established. Since this contention is not disputed by the learned standing counsel, the order of the Labour Court upholding the domestic enquiry must, necessarily be held to have been vitiated. It is no doubt true, that even in case the domestic enquiry is vitiated the employee is entitled to adduce evidence afresh before the Labour Court in support of the charge. However, in order to do so, the employer must take a specific plea in their counter-affidavit seeking permission of the Labour Court to adduce evidence afresh. 6. The respondents have not placed a copy of the counter- affidavit filed by them in the Labour Court before us. 7. Smt. B.G. Uma Devi, the learned standing counsel for the Corporation, would state that the records of the Corporation do not contain a copy of the counter-affidavit. 8. In the absence of the counter-affidavit, we have to necessarily presume that no such plea was taken in the counter-affidavit seeking permission of the Labour Court to adduce evidence afresh and, in the absence of any such request and as the employee is not entitled to adduce evidence afresh, the charges levelled against the workman cannot be said to have been established. The award of the Labour Court has therefore, necessarily to be set aside. The consequences of the award of the Labour Court is being set aside, is that the workman is entitled for reinstatement. The question of payment of backwages would, however, depend on several circumstances, we are however saved the trouble of examining these aspects in view of the submission of Sri A.K. Jayaprakash Rao, learned counsel for the petitioner-workman that it would suffice if this Court well to modify the order of the learned single Judge to the limited extent the petitioner- workman is given the benefit of continuity of service and is extended the benefit of notional increments only for the purpose of payment of terminal benefits. Since the relief sought for is only to this limited extent, we modify the order of the learned single Judge and, in addition to the relief granted in the writ petition, direct the second respondent to extend the petitioner-workman the benefit of continuity of service and notional increments only for the purpose of computation and payment of his terminal benefits. 9. Both the writ appeals are disposed of accordingly. No costs. ________________________ JUSTICE T. MEENA KUMARI. ______________________________ JUSTICE RAMESH RANGANATHAN. 18/6/2008. I s L