IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE TWENTYFIRST DAY OF JANUARY TWO THOUSAND AND TEN PRESENT THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 8 6 9 OF 2009 Between: The Depot Manager, APSRTC Bus Depot, Parkal, Warangal district, A.P. …. Appellant V/s. The Industrial Tribunal-cum-Labour Court, Represented by its Presiding Officer, Warangal District & Another …. Respondents Counsel for the Appellant: Ms. P. Rajani Counsel for the Respondents: Govt. Pleader for Labour Sri P. Sridhar Rao THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 8 6 9 OF 2009 J U D G M E N T : (Per the Hon'ble Smt. Justice T. Meenakumari) This writ appeal is filed against order dated 18-4-2009 passed in WP.No. 2620 of 2009 by the learned single Judge, whereby the learned single Judge while disposing of the said writ petition observed that in the absence of any denial by the Corporation that the writ petitioner was not gainfully employed during the period he was out of service, he cannot be denied backwages on the ground that he was gainfully employed. But however, in order to balance the interests of the petitioner with that of the public interest, a suggestion is made by the Court to the learned counsel for the petitioner that the petitioner may agree for receiving 50% of the backwages. The award of the Tribunal was modified by directing Respondent No.2 to extend the benefit of continuity of service including that of notional increments to the writ petitioner with 50% of backwages for the period, during which he was out of employment. 2. The main writ petition has been filed by the respondent seeking a writ of Certiorari and to quash the award dated 21-2-2007 in ID.No. 86 of 2005 published on 03-7-2007 vide GO. Rt.No. 1044, dated 08-5-2007 on the file of the first respondent in so far as denying the continuity of service, back wages and other consequential benefits as arbitrary, perverse, illegal, unjust, contrary to law and also in violation of Articles 14 and 21 of the Constitution of India and to consequently grant all such other reliefs as this Court may deem fit and proper in the circumstances of the case. 3. The facts of the case are that the respondent No.2 herein is a conductor of appellant-corporation and while on 27-12-2002, the respondent No.2 was conducting service on route Parkal- Hanamkonda – Godavarikhani, a check was exercised by the checking officials at Stage No. 15/17 leading to issuance of charge sheet, against the respondent No.2, with the following charges: 1. For having collecting Rs.21/- from a passenger and issued the tickets bearing No.131/541666 of Rs.40/- E.1 and 307/190015 of Rs.7/- deno. E.1 (total Rs. 47/-_ who boarded the bus at Parkal and bound for Garapally Ex- stages 7 to 17/27, these tickets are already issued/sold and accounted on the stage No.1 at 5.00 a.m. vide SR.No. 8509052 these tickets are re-issued, which constitutes misconduct under Regulation 28 (xxiii) and (ix) (a) read with 28 (x) of APSRTC Employees (Conduct) Regulation, 1963. 2. For having collected Rs.35/- from another passenger and issued the ticket bearing No. 725/818901 of Rs.30/- deno, E.1 and 444/1777790 of Rs.4/0 (Total Rs.34/-) who boarded the bus at Parkal and bound for Godavarikhani, Ex-stages 7 to 29, those tickets are already issued on the stage No.1 at 5:00 a.m. and accounted vide SR.No. 8509052 these tickets are re-issued, which constitutes misconduct under Regulation 28 (xxiii) and (ix) (a) read with 28 (x) of APSRTC Employees (Conduct) Regulation, 1963. 3. For having collected Rs.8/- from a lady passenger and issued the bearing tickets 225/818900 of Rs.30/- deno, E.1 and 444/177790 of Rs.4/0 deno, E.1 who boarded the bus at Bhupalapalli and found for Kataram, Ex-stages 15 to 19, those tickets are issued and accounted on the Stage No.1 at 5.00 a.m. vide SR.No. 8509052 those tickets are re-issued at the stage Nos. 15 to 19, which constitutes mis-conduct under Regulation 28 (xxiii) and (ix) (a) read with 28 (x) of APSRTC Employees (Conduct) Regulation, 1963. 4. For having failed to issue valid passenger tickets to above (3) passengers boarded your bus at their boarding stage and discharged duties negligently causing serious loss of the Corporation while performing duty on 27-12- 2002 which constitutes misconduct under Regulation 28 (xxiii) and (ix) (a) read with 28 (x) of APSRTC Employees (Conduct) Regulation 1963. 4. Pursuant to the aforesaid charges, the Respondent No.2 seems to have submitted his explanation denying the charges mentioned above and an inquiry has been conducted by the Enquiry Officer and after considering the explanation of Respondent No.2, an order of removal was passed on 17-7-2003 by the Corporation. Thereafter, the respondent No.2 filed appeal and also review petitions but the same were dismissed by orders dated 28-08-2003 and 13-05-2005 respectively. Questioning the same, the respondent No.2 herein raised an industrial dispute by way of I.D.No. 86 of 2005 before the Industrial Tribunal and the Industrial Tribunal has passed an award dated 21-02-2007 held that the punishment of removal inflicted on the respondent No.2 is disproportionate to the alleged misconduct and the removal order dated 23-6-2003 is set aside and directed that the respondent No.2 be reinstated without back wages, continuity of service and other consequential benefits. Questioning the same, the respondent No.2 herein filed WP.No. 2620 of 2009. 5. Heard both sides and perused the material placed on record. 6. According to the appellant-corporation, the learned standing counsel for the appellant-corporation relied upon a judgment in U.P. BRASSWARE CORPORATION LIMITED V/s. UDAY NARAIN PANDEY, reported in (2006) 1 SCC-479, wherein the Hon’ble Supreme Court held that the initial burden is on the employee to show that he was not gainfully employed. The learned single Judge has held that in the pleadings filed before the Tribunal, the respondent No.2 herein (writ petitioner) pleaded as under : “It is submitted that the petitioner is now 52 years old and that there is no possibility to score any alternative job being his over age. Due to which the family of the petitioner has been struggling a lot and putting into untold hardship.” 7. Having heard both sides and in order to balance the interests of the respondent No.2 - writ petitioner with that of the public interest, the learned single Judge directed to pay 50% back wages by extending the benefit of continuity of service including that of notional increments, during which he was out of employment. Aggrieved by the same, the appellant-corporation filed the present writ appeal. 8. The learned standing counsel for the appellant- corporation argued that the fact remains that the respondent No.2 has issued already tickets and sold at stage No. 1 and the charges were held to be proved and hence the Labour Court has ordered only his reinstatement into service as a “conductor afresh” in the present scale of pay but without continuity of service, back wages and other consequential benefits. But in view of the fact that the learned single Judge has held that the respondent No.2 herein has not gainfully employed and ordered reinstatement with continuity of service including that of notional increments with 50% of back wages for the period, during which he was out of employment and under the above circumstances, we are of the opinion that in the absence of any other material placed before this Court by the appellant-corporation that the respondent No.2 is gainfully employed during the period which he was out of employment, we are of the opinion that the observation of the learned single Judge is perfectly crystallized and the same is in accordance with the preponderance of probabilities. We do not see any reason to interfere with the impugned order and accordingly the writ appeal is dismissed. However, in the circumstances, there shall be no order as to costs. __________________________ JUSTICE T. MEENA KUMARI ________________________________ JUSTICE SANJAY KUMAR 21-01-2010. I s L NB: Furnish CC in 2 days. B/o. IsL THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 8 6 9 OF 2009. Judgment of the Division Bench delivered by the Hon'ble Smt. Justice T. Meenakumari) Circulation Entry No. 73 Date: 21-01-2010 COMPUTER No. 43 Court Master: I s L