*THE HON'BLE SRI JUSTICE SANJAY KUMAR +WRIT PETITION NO.2753 OF 2004 %11-09-2009 # A.Ramaiah, S/o.Venkaiah, R/o.H.No.19-450, College Road, Mancherial, Adilabad Dist. … Petitioner Vs. $1 The Hon'ble Industrial Tribunal-Cum-Labour Court, Godavarikhani, rep.by its Presiding Officer. 2 The Depot Manager, APSRTC, Mancherial Bus Depot, Mancherial, Adilabad District. … Respondents <GIST: >HEAD NOTE: ! Counsel for Petitioner : Sri G. Ravi Mohan. ^ Counsel for respondents : G.P. for Labour for R-1. Smt.P.Rajini Reddy for R-2 ? CASES REFERRED: 1) 2008-LAP-0-23 = 2008 (TLS) 436275 = 2008 (3) ALT 234 2) (2007) 2 SCC 433 3) (2008) 5 SCC 554 4) AIR 1956 SC 593 5) (2005) 7 SCC 653 6) (2006) 2 SCC 641 7) (2009) 3 SCC 754 8) 2007 (1) LLN 725 9) (2003) 3 SCC 605 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 2753 of 2004 Between: A.Ramaiah, S/o.Venkaiah, R/o.H.No.19-450, College Road, Mancherial,Adilabad Dist. ..... PETITIONER AND 1 The Hon'ble Industrial Tribunal-Cum-Labour Court, Godavarikhani, rep.by its Presiding Officer. 2 The Depot Manager, APSRTC, Mancherial Bus Depot, Mancherial, Adilabad District. .....RESPONDENT(S) 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 to issue writ order or direction more particular one in the nature of writ of Certiorari and after calling for the records in I.D.No.107/1999 dt.19-1-2001 on the file of the Hon'ble 1st Respondent in so far as denying continuity of service, attendant benefits and back wages to the petitioner is illegal arbitrary and unjust, and consequently set aside the award in I.D.No.107/1999 dt.19-1-2001 by granting continuity of service, attendant benefits and back wages, to the petitioner and pass such other order Counsel for the Petitioner:MR.G.RAVI MOHAN Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2753 OF 2004 ORDER: The petitioner, a Conductor in the Andhra Pradesh State Road Transport Corporation (for brevity, ‘the APSRTC’), challenges the Award dated 19.01.2001 in I.D.No.107 of 1999 on the file of the Industrial Tribunal-cum-Labour Court (hereinafter referred to as ‘the Labour Court’), Godavarikhani, to the extent it denied him continuity of service, attendant benefits and back wages. The petitioner was appointed as a Conductor in the APSRTC on 01.07.1988. Alleging certain cash and ticketing irregularities against him, the APSRTC issued charge sheet dated 05.11.1998. The petitioner submitted his explanation on 13.11.1998. Dissatisfied with the same, the APSRTC instituted an enquiry into the matter. By his report dated 06.01.1999, the Enquiry Officer found the petitioner guilty of the charges. Thereupon, the APSRTC issued Show Cause Notice dated 05.02.1999 proposing his removal from service. He was terminated from service on 18.02.1999. His appeal against the same was rejected on 15.05.1999. The revision petition filed by him was also rejected on 27.05.1999. The petitioner then raised an Industrial Dispute before the Labour Court, Godavarikhani, under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’), which was taken on file as I.D.No.107 of 1999. By it’s Award dated 19.01.2001, the Labour Court directed the APSRTC to reinstate the petitioner in service but, without continuity of service and back wages. Aggrieved by the denial of these reliefs, the petitioner filed the present writ petition. Sri G.Ravi Mohan, learned counsel for the petitioner, contended that the Award under challenge leaves much to be desired. He pointed out that the Labour Court had not discussed the merits of the matter and had merely referred to the evidence adduced before the Enquiry Officer. Further, no reasons were recorded as to why the petitioner was being denied the benefit of continuity of service and back wages. He therefore submitted that the matter deserved re-consideration and prayed that the case should be remanded to the Labour Court for fresh disposal on these aspects. He placed reliance on the Judgment of a learned Judge of this Court in P.F.KHAN v. DEPOT MANAGER, APSRTC, ANANTAPUR[1] in this regard. Refuting the above contentions, Smt.P.Rajani Reddy, learned standing counsel for the APSRTC, submitted that the material on record clearly demonstrated the culpability of the petitioner and therefore, the matter did not warrant interference on the sole ground that the Award of the Labour Court was not elegantly drafted. She submitted that the petitioner had been afforded sufficient opportunity at every stage and that he could not be permitted to take advantage of any lapses on the part of the Labour Court in writing the Award. She submitted that, in any event, entitlement to back wages and continuity of service was not automatic upon a direction of reinstatement. She drew support for this proposition from the Judgment of the Supreme Court in J.K.SYNTHETICS LTD. v. K.R.AGRAWAL[2]. In P.F.KHAN’s case (1 supra), the learned Judge was dealing with an Award modifying an order of removal to one of compulsory retirement. While reiterating the established principles that this Court would not sit in appeal in exercise of it’s jurisdiction under Article 226 of the Constitution and that the Labour Court is normally the final authority as regards the appreciation of the facts in the Industrial Dispute, the learned Judge pointed out that the High Court would not interfere with the power of the Labour Court in moulding the relief and would not interfere with the Award unless it suffered from a patent illegality or perversity. The learned Judge further observed that an unbiased adjudication of the matter takes place only when the dispute reaches the Labour Court and therefore, a heavy burden rests upon the Labour Court to examine the matter from all possible angles to satisfy itself as to whether there existed proper material to sustain the punishment imposed upon the workman. In this regard, the learned Judge held that failure on the part of the Labour Court to appreciate the evidence that already formed part of the record would render the adjudication incomplete. Applying the above principles to the case before him, the learned Judge found that the Labour Court had not made any effort to discuss the oral evidence except making casual references to the documentary evidence. Based on this finding, the learned Judge held that the Labour Court ought to have paid greater attention to the matter, particularly in the context of discussing the oral evidence and accordingly set aside the Award remanding the matter to the Labour Court for fresh consideration. Sri G.Ravi Mohan, learned counsel, sought to draw support from the above decision and submitted that the case on hand is also one which requires to be remanded for fresh consideration in so far as denial of the consequential reliefs are concerned, as the Award of the Labour Court is bereft of reasoning. He submitted that there was no proper appreciation of the material and evidence on record by the Labour Court in this regard. The failure on the part of the Labour Court to support it’s conclusions with proper reasoning would normally prompt this Court to remand the matter for a fresh consideration. Such a step is necessitated by the principle that the workman is entitled to a complete and proper adjudication of his case before the Labour Court, the Court of the first instance. A ‘complete’ adjudication of the case requires that the parties are made aware of the ‘whys and wherefores’ which weighed with the Court in reaching a particular decision. An unreasoned adjudication, on the other hand, leaves the parties utterly in the dark without a clue as to why they have been granted or denied a particular relief. This Court, in a writ petition, would not be sitting in appeal over such an adjudication and would only review the ‘decision making process’. Even if a writ petition were to be treated as an appeal, it would still amount to ‘an unfair trial followed by a fair appeal’, which would be in violation of the principles of natural justice which require a proper hearing and adjudication be afforded to the aggrieved at both stages. In the case on hand, it is relevant to note that the Labour Court did not disagree with the finding recorded in the domestic enquiry that the charges against the petitioner were held proved. It was only on the ground of proportionality of the punishment that the Labour Court interfered in the matter and modified the punishment of removal from service to that of reinstatement without back wages and continuity of service. A reading of the said Award demonstrates that the argument of Sri G.Ravi Mohan, learned counsel, with regard to the shortcomings therein, is well founded. Except for referring to the some of the documents, the Labour Court did not choose to discuss the evidence or the material on record which prompted it to agree with the conclusion of the Enquiry Officer that the petitioner was guilty as charged. Relevant to note, the Labour Court did not even to choose to refer to the enquiry report, Ex.M-15, or discuss the findings recorded therein. It is also significant to note that in his claim statement before the Labour Court, the petitioner had specifically alleged that the domestic enquiry was stage-managed, pointing out the defects therein which, according to him, rendered the enquiry invalid. Once an allegation was made to this effect, it was necessary for the Labour Court to record a finding as to the validity of the domestic enquiry and for this purpose the Labour Court necessarily had to examine the matter on merits and come to the conclusion as to whether the case was a ‘proper’ one for interference. As pointed out by the Supreme Court in USHA BRECO MAZDOOR SANGH v. MANAGEMENT OF USHA BRECO LIMITED AND ANOTHER[3], the Labour Court would not interfere with the findings of the Enquiry Officer only because it is lawful to do so or because another view was possible. Material has to be brought on record to establish the lack of bona fides or victimization or unfair labour practice on the part of the management. In the light of the aforestated principles, keeping in mind the fact that the petitioner had specifically raised an allegation with regard to the validity of the domestic enquiry, the Labour Court necessarily ought to have considered the matter on merits and come to a decision as to whether a ‘proper’ case had been made out for it’s interference. However, as stated supra, the Labour Court merely confirmed the finding recorded in the domestic enquiry and thereafter, went on to apply the doctrine of proportionality. In this regard, the Labour Court again erred in taking into account the past conduct of the petitioner which, admittedly, was not part of the charges levelled against the petitioner. It cannot be assessed by this Court as to what extent this ‘past conduct’ influenced the mind of the Labour Court in evaluating the proportionality of the punishment. Thus, for reasons more than one, the Award under challenge falls long short of expectations. At the same time, it has to be noted that the Award is devoid of cogent reasons not only vis-à-vis denial of consequential reliefs but is equally so even for justifying the grant of the relief of reinstatement. It is no doubt true that the APSRTC did not question the subject Award and it is only the workman who posed a challenge to it, in so far as it denied him back wages, continuity of service and attendant benefits. However, the Award in the present case must stand or fall in its entirety. The petitioner cannot take the benefit of reinstatement granted under the said Award, without any reasons forthcoming therefor, while attacking the denial of other reliefs on the ground that no reasons are furnished. Notwithstanding the absence of a challenge by the APSRTC, it is not open to the petitioner to take advantage of one portion of the Award and reject the other, on grounds which are common to both. The maxim ‘qui approbate non reprobate’ would apply to the facts on hand and the petitioner, having taken advantage of the unreasoned Award in respect of one relief cannot decry it in respect of the reliefs denied on the very same ground, viz. that it is unreasoned. Reference may be made to the judgment of the Supreme Court i n NAGUBAI AMMAL v. B.SHAMA RAO[4], wherein the Court upheld the contention that a party who condemned the proceedings in a particular suit as collusive and obtained a finding to that effect cannot change his stand thereafter and rely upon the same suit proceedings. This bar arises on the principle that a person cannot both ‘approbate and reprobate’. NAGUBAI AMMAL was relied upon and reiterated by the Supreme Court in DEVASAHAYAM v. P.SAVITHRAMMA[5], NATIONAL INSURANCE CO. LTD. v. MASTAN[6] and BADRI KEDAR PAPER (P) LTD. v. U.P.ELECTRICITY REGULATORY COMMISSION[7]. Therefore, the petitioner cannot be heard to say that the matter should be remanded for fresh consideration only on the aspect of denial of consequential reliefs and not with regard to his reinstatement. As stated supra, the Award in this case must stand or fall in it’s entirety, when its undoing is lack of reasons which taints not only the relief denied but also the relief granted. Smt.Rajini Reddy, learned counsel, placed reliance on the judgment of the Supreme Court in J.K.SYNTHETICS LTD. v. K.P.AGRAWAL[8] for the proposition that a direction by the Labour Court to reinstate would not automatically ensue in grant of the reliefs of continuity of service and back wages. The Supreme Court held therein that grant of back wages was no longer considered to be an automatic or natural consequence of reinstatement. After referring to precedential law on this aspect, the Court held that various other aspects would have to be considered, such as the gainful employment of the workman during the said period, the manner and method of selection and appointment, the nature of appointment, the length of service rendered by the employee etc. Even if back wages are to be awarded, the facts and circumstances of the case would have to be kept in mind while deciding the quantum thereof. The Court also observed that while directing reinstatement, the Court/Tribunal should apply it’s judicial mind to the facts and circumstances to decide whether ‘continuity of service’ and/or ‘consequential benefits’ should also be directed. It is also relevant to note that the Labour Court blindly applied the doctrine of proportionality to the case on hand. Once the misconduct against the workman is held proved, the doctrine of proportionality would come into play in exercise of jurisdiction under Section 11-A of the Act of 1947. However, the principles adumbrated by the Courts in this regard would have to be borne in mind by the Labour Court. It is relevant to note that in REGIONAL MANAGER, U.P.SRTC v. HOTI LAL[9] the Supreme Court observed that a mere statement by the Labour Court that the punishment is disproportionate would not suffice. Reasons have to be indicated as to why the punishment was considered so. The Court further observed that reasons are the live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at and held that failure to give reasons amounts to denial of justice. The observation of the Supreme Court in the aforesaid decision in the context of the quantum of punishment are apposite: “10. … … the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court’s order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. (See Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120 (NIRC). A mere statement that it is disproportionate would not suffice. ... ... … It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. …” In the light of the aforestated position of law, the doctrine of proportionality would have to be applied stringently in cases involving trust, honesty, integrity and where the employee concerned deals with public money, financial transactions or acts in a fiduciary capacity. In the present case, no such exercise was undertaken by the Court in the application of the doctrine. For all the aforestated reasons, the Award under challenge is unsustainable on facts and in law and is accordingly set aside. The matter is remitted to the Industrial Tribunal-cum-Labour Court, Godavarikhani, for fresh consideration in the light of the principles mentioned supra. This exercise shall be completed by the Labour Court, after giving due opportunity of hearing to both the parties, as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order. The writ petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. __________ September, 2009. Note: L.R. copy to be marked. B/o VGSR / PGS [1] 2008-LAP-0-23 = 2008 (TLS) 436275 = 2008 (3) ALT 234 [2] (2007) 2 SCC 433 [3] (2008) 5 SCC 554 [4] AIR 1956 SC 593 [5] (2005) 7 SCC 653 [6] (2006) 2 SCC 641 [7] (2009) 3 SCC 754 [8] 2007 (1) LLN 725 [9] (2003) 3 SCC 605