THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 36545 OF 1998 Date: 15.02.2008 Between: The Depot Manager, APSRTC, Medak Depot. … Petitioner and The Labour Court-II, rep., by its Presiding Officer, Hyderabad and another. … Respondents THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 36545 OF 1998 ORDER: Aggrieved by the award of the Labour Court, Hyderabad in I.D. No. 85 of 1994 dated 30.06.1998, the APSRTC has filed the present writ petition. The first respondent, a conductor with the APSRTC having been appointed as such on 08.06.1979, was conducting the bus from Hyderabad to Medak when a check was exercised. Consequent thereto a charge memo dated 06.03.1993 was issued containing charges whic are as under: 1. For having collected the fare of Rs.8.00 from a batch of two passengers and failed to issue from tickets, who boarded your bus at CBS and bound for JBS, found alighting without tickets ex-stages 27 to 25, which constitutes a misconduct under regulation 28(vi-a) of APSRTC Employees Conduct Regulations, 1963. 2. For having prounced on the table of the station Manager of JBS and snatched away the passengers statement charge memo No. 0139126, dated 27.02.1993 and SR and having torned the passenger statement into pieces, swallowed that andran out of the cabin, which constitutes misconduct under Regulations (xxx) of APSRTC Employees (Conduct) Regulations, 1963. 3. For having refused to attest on the charge memo No. 019126 dated 27.02.1993 which was served on you by station Manager/JBS Picket, Secunderabad and attested by the Depot Manager/Contonment depot as well as the service driver Sri M.Y. Houd, E. 251671 which constitutes mis-conduct under regulation 28(xxi) of APSRTC Employees Conduct Reg. 1963. 4. For having created a seen in the premises of the station Manager’s Office at JBS/Picket by collecting a mob of passengers duly instigating them against the officials, which constitutes misconduct under regulation 28(xviii) of APSRTC Employees Conduct Regulations, 1963. The first respondent submitted his explanation on 29.03.1993 and, since it was not found satisfactory, a domestic enquiry was ordered. The enquiry officer, in his report, held all the four charges to have been established. A show cause notice was issued and, eventually the punishment of removal from service was imposed vide proceedings dated 17.07.1993. Aggrieved thereby, the first respondent invoked the jurisdiction of the Labour Court under Section 2-A(2) of the Industrial Disputes Act. The Labour Court held that the domestic enquiry was invalid and permitted the petitioner herein to let in evidence. The petitioner examined two witnesses M.Ws-1 and 2 and marked Exhibits.M-1 to M9 whereas the first respondent examined himself as WW-1 and marked Ex.M-1. The Labour Court, on a detailed analysis of the evidence on record both oral and documentary, held all the charges as not proved. While Smt. B.G. Umadevi, learned Counsel for the petitioner would contend that the Labour Court had failed to appreciate the evidence in the proper perspective, it cannot be lost sight of that this Court, in certiorari proceedings under Article 226 of the Constitution of India, does not sit in appeal over findings of fact recorded by the Labour Court. It is not even the case of Smt. B.G. Umadevi, learned Standing Counsel for the Corporation, that the findings of the Labour Court are either perverse or are based on no evidence. Since this Court would not re-appreciate the evidence on record, or substitute its findings for that of the Labour Court, the award of the Labour Court to the extent the charges levelled against the first respondent-workman were held not to have been established, cannot be faulted. Having held that the charges were not proved, the Labour Court noted the specific averment of the first respondent, that after removal from service he did not work anywhere, and passed an award directing the petitioner herein to reinstate the first respondent herein with continuity of service, attendant benefits and full back wages. Smt. B.G. Umadevi, learned Standing Counsel for the Corporation, would rely on J.K. Synthetics Ltd. Vs. K.P. Agrawal[1] to contend that the Labour Court is required to take into account several factors before deciding whether full back wages should be awarded or not. While holding that, in cases where reinstatement is a consequence of imposition of a lesser punishment, back wages would not follow as a natural consequence and that in cases where the misconduct is held established and reinstatement itself was a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee had not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee, the Supreme Court noted that there were two exceptions to this general principle. The First is where the Court sets aside the termination order as a consequence of the employee being exonerated or being found not guilty of misconduct and the second is where the court reaches the conclusion that the inquiry was held in respect of a frivolous issue or a petty misconduct, as a camouflage to get rid of the employee or victimize him, and the disproportionality excessive punishment is a result of such scheme or intention. The Supreme Court held that in these two exceptions the principles relating to back wages would be the same as those applicable in cases of illegal termination. Even in cases of illegal termination, the Supreme Court held that the earlier law that reinstatement with full back wages was the norm and denial of back wages the exception had undergone a significant change and that the factors, including whether an employee was gainfully employed elsewhere after he was removed from service and prior to the award of the Labour Court was a matter which the Labour Court was required to examine. In the case on hand the Labour Court has taken note of the contention of the first respondent that, after he was removed from service, he did not work anywhere. In the light of such an assertion, the onus shifted on the petitioner herein to establish that the first respondent had, in fact, been gainfully employed elsewhere during the period subsequent to the date on which he was removed from service till the date on which the Labour Court passed an award. Let alone, not having adduced any evidence in this regard the respondents have not even pleaded in their counter-affidavit that the first respondent had been gainfully employed elsewhere. In such circumstances the award, whereby full back wages was granted to the first respondent-workman, cannot also be faulted. The writ petition fails and is, accordingly, dismissed. In the circumstances, no costs. _______________________________ Date: 15.02.2008 RAMESH RANGANATHAN, J MRKR [1] (2007)2 SCC 433