THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Dated this the 9th day of November 2009. Writ Petition No. 28509 of 1998 Between: B.Narsimulu ……..Petitioner vs. 1.The Presiding Officer, Labour Court-II, Hyderabad and another. ………Respondents. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 28509 of 1998 ORAL ORDER: This writ petition is directed against an Award passed by the Labour Court-II, Hyderabad in I.D.No. 94 of 1994 dt. 16.9.1997. The writ petitioner/workman was employed as a driver with the State owned APSRTC. While he was performing his duties on 18.10.1992, an accident occurred involving the bus, which he was driving resulting in the death of an eight year old pedestrian. Alleging that writ petitioner drove the bus rashly or negligent, he has been subjected to domestic enquiry and based upon the report filed by the Enquiry Officer, he was removed from service w.e.f. 10.6.1993. The appeal and the revision preferred to the appellate and revisional authority failed. Invoking the provisions under Section 2-A (2) of the Industrial Disputes Act 1947, he raised I.D.No. 94 of 1994 before the Labour Court putting in issue the order of removal passed against him as a measure of discipline by the Award passed on 19.9.1997. The Labour Court directed the petitioner to be reinstated into service with continuity of service, but however back-wages for the period he was not in employment, pursuant to the order of termination was denied to him. Questioning this aspect of the Award, the present writ petition is filed. It is appropriate at this stage to notice that the Management of the APSRTC has not called in question the correctness of the Award passed by the Labour Court in so far as it ordered reinstatement with the benefit of continuity of service, in favour of the writ petitioner. I have heard Sri.Narasimha Goud, learned Counsel for the petitioner and Sri.Sunil Kumar Reddy, learned Standing Counsel for the APSRTC. Sri.Narasimha Goud has strenuously contented that the reasoning assigned by the Labour Court for denying back-wages to the writ petitioner was completely erroneous. Firstly, it assigned the reason that the writ petitioner has not put the Management of the APSRTC on notice to reconsider its decision by giving 15 days duration prior to invoking the jurisdiction of the Labour Court under Section 2-A (2) of the I.D. Act and secondly, the docket sheet of the case file disclosed that except on the date of final hearing and on the date of hearing about the validity of the domestic enquiry, the petitioner was not ready on other adjournments to prosecute the case. According to the learned Counsel, both the reasons are fallacious. He firstly contended that the requirement of putting the Management of APSRTC on notice prior to invoking the jurisdiction of the Labour Court directly under Section 2-A (2) of I.D. Act is purely procedural and not a substantive provision, the violation of which cannot be construed as a fatal aspect to the exercise of jurisdiction or power by the Labour Court. In fact, he has also placed reliance upon a decision of a Division Bench of this Court rendered in Municipal Corporation of Kurnool vs. A.Padma Reddy [2007 (2) L.L.N. 226] wherein it was held that Rule 11(6) of the Industrial Disputes Rules is merely a procedural aspect of the matter prescribed for adjudication of the individual disputes raised by the workman. The Bench found that the very placement of this rule in the company of other rules relating to powers, procedures and duties of Conciliation Officers etc., is unequivocally indicative of its procedural character and hence Form K-4 is to be treated as a part of the procedure prescribed by the rule-making authority for submission of application by a workman and that the prior notice contemplated therein is only intended to facilitate any possible pre- litigation settlement of dispute and not anything else. The contention canvassed by the learned Counsel for the writ petitioner, in view of the Division Bench Judgment referred to supra, must be accepted. The requirement of serving notice prior to invoking the power and jurisdiction of the Labour Court under Section 2-A (2) of the I.D. Act is purely procedural aspect intended to secure any pre-litigation settlement between the parties. Beyond that no significance need be attached thereto and non- service of any such notice need not necessarily result in dilution of the relief, which is otherwise liable to be granted to the individual workman. However, the learned Counsel for the petitioner stoutly disputed the recording of fact that the writ petitioner was not ready on the other occasions when the matter was posted. According to the learned Counsel for the Petitioner Sri.Narasimha Goud, for a variety of reasons, the Labour Court keeps adjourning the cases from time to time in as much as it also gives priority to dispose of certain important and pressing cases first. The Labour Court does not give priority to freshly instituted cases. Therefore, to deny the back-wages only on that ground is neither just nor reasonable. While considering the issue relating to grant of back- wages, the learned Standing Counsel rightly reminded the court that awarding of full back-wages is not an automatic feature, to follow upon reinstatement of every workman. But at the same time, it should be remembered that if a workman is not employed gainfully during the interregnum period, award of back-wages must be considered by the Labour Court, when it comes to the conclusion that the finding recorded by the Management about his guilt is not warranted or just. In the instant case, for want of material produced by the Management that the writ petitioner/driver of the vehicle has driven rashly or negligently, the writ petitioner could not have been faulted fully for the fatal accident involving the bus driven by him. Accidents do occur inspite of necessary precautions being taken and adopted by the drivers of the motor vehicles. No one can rule out the possibility of contribution of negligence on the part of the deceased as well. Therefore, without examining those aspects of the matter, it is improper for one to hold that the driver of the bus is imminently responsible for the fatal accident. Sri.Narasimha Goud, learned Counsel for the petitioner pointed out that the Conductor of the bus who was examined before the Domestic Tribunal has vouched that the driver of the bus is not at fault for having caused the fatal accident. It was also pointed out that the accident had occasioned only due to impact of the tail portion of the vehicle. Thus, it is indicative of the evasive measures taken by the driver and in spite of the same, the accident had occasioned. These aspects of the matters have been taken as unchallenged by the Management as no eyewitness was examined before the domestic tribunal to establish the fact that the bus in question has been driven rashly or negligently. If the writ petitioner is not guilty of driving the vehicle in question rashly or negligently and if in spite of taking all necessary precautions to avoid an impact with a pedestrian, if an accident had occasioned, he cannot be faulted completely. Attempt should have been made to apportion the amount of contribution of negligence by the driver as well as by the pedestrian. Based upon such an assessment, the quantum of guilt could have been ascertained. In the absence of any such material indicating the quantum of contribution to the negligence that resulted in the fatal accident, by the driver of the bus, it will not be proper to hold him exclusively guilty for causing the accident. In such circumstances, he cannot be penalized by denying him the benefit of back- wages. The writ petitioner has pleaded in his claim statement that he was not gainfully employed during the interregnum. Since the Management of the APSRTC has not disputed such a factum, he was not called upon to lead any specific evidence in that regard. But however, as rightly contended by the learned Standing Counsel, a reasonable measure should be employed by the Courts while modulating the relief that is liable to be granted. Being alive to this requirement, the learned Counsel for the writ petitioner, upon receiving instructions from the writ petitioner has submitted that award of at least 50% of the back-wages for the interregnum period would ultimately meet the ends of justice, instead of denying him the complete back-wages. I see considerable force in the submission made by the learned Counsel for the petitioner. The Labour Court has reversed a finding of fact holding that the Enquiry Officer is not justified in recording a finding that the petitioner is guilty of rashly or negligently driving the bus in question, which resulted in a fatal accident. In fact, it is based upon such finding, the disciplinary authority has the imposed punishment of termination from service on the petitioner. When once the Labour Court had come to a conclusion that the finding recorded by the Domestic Tribunal is not justified, it reasonably follows that the basis for the action taken by the disciplinary authority has been knocked down. In such an event, the back- wages at least to the extent of payment of 50% ought to have been awarded as an act of balancing the interests of the Corporation on one hand and the workman on the other. I therefore allow this writ petition modifying the award passed on 16.9.1997 in I.D.No. 94 of 1994 by the Labour Court-II, Hyderabad that the writ petitioner/driver/workman is entitled to payment of 50% of the back-wages from the date of termination from the service till his eventual reinstatement into service. The same may be calculated and paid to the writ petitioner in one or more than one instalments commencing from 1.3.2010. The writ petition is allowed to the extent indicated above. No order as to costs. _____________________________ NOOTY RAMAMOHANA RAO,J 9.11.2009. Krb. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 28509 of 1998 Dated this the 9th day of November 2009.