THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.379 OF 2007 DATED 6TH DECEMBER, 2010 BETWEEN The Depot Manager, APSRTC, Vakadu Depot, Nellore District. And Another … Petitioners And Ch.Venkateswara Rao, E.510373, Ex.Conductor, C/o S.Hanumantharao, RTC Conductor, Ravindranagar, Kondayapalem Gate, Dargamitta, Nellore. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.379 OF 2007 ORDER: The Andhra Pradesh State Road Transport Corporation (APSRTC) assails the Award dated 12.10.2004 passed by the Labour Court, Guntur, in I.D.No.253 of 2001. By the said Award, the Labour Court set aside the removal of the first respondent Conductor from service and directed his reinstatement with full back wages, continuity of service and attendant benefits including increments. In spite of service of notice, the first respondent Conductor did not choose to put in an appearance before this Court, either in person or through counsel. This Court, at the stage of admission, by order dated 05.01.2007 took note of the fact that the first respondent Conductor had been reinstated and accordingly stayed the operation of the Award except reinstatement. The first respondent Conductor was subjected to disciplinary proceedings in connection with certain cash and ticket irregularities allegedly detected while he was conducting a bus service on 06.09.1999. Three charges were framed against him. The first charge was more serious in nature. Thereunder, the petitioner was charged with failure to issue tickets to a batch of three passengers in spite of collecting Rs.10/- from them. The second charge related to his failure to close the ticket tray numbers of all denominations in the SR. The third charge related to the violation of the rule of ‘issue and start’. The Labour Court, upon examination of the material on record, found that the first charge was not established. The three passengers in question boarded the bus being under the impression that it was a regular passenger service. Upon being informed that it was an express service and that they would have to pay higher ticket fare, they were in the process of alighting from the bus when the check took place. The Labour Court found that in fact a passenger bus had been used in the place of an express bus. One of the three passengers out of the batch, examined during the enquiry, specifically stated that no money had been paid to the Conductor towards ticket fare. The charge that he had collected Rs.10/- from them therefore stood nullified. Thus, as matters stood, only the second and third charges remained. However, the Labour Court baldly held that all the three charges were not proved without further discussion as to these two charges. It is relevant to note that the first respondent Conductor did not make an averment in his claim petition that he was not gainfully employed after his removal from the service of the APSRTC. In the light of the law laid down by the Supreme Court in J.K. SYNTHETICS LTD. v. K.P.AGRAWAL[1], the burden is upon the workman to make such an averment on oath before the Labour Court and only thereupon the onus would shift to the employer to prove to the contra. The first respondent Conductor in the present case failed to cross this first hurdle. There was therefore no material before the Labour Court to indicate that the first respondent Conductor remained unemployed during the interregnum period. Further, there is no discussion forthcoming in the Award under challenge as to what prevailed upon the Labour Court to grant full back wages. All the more so, when the first and second charges were not even discussed by the Labour Court. In such circumstances, this Court is of the opinion that denial of back wages to the first respondent Conductor would be sufficient punishment for the second and third charges established against him. The direction of the Labour Court to pay full back wages is accordingly set aside. The Award under challenge is modified to this extent but shall stand confirmed in all other respects. The Writ Petition is allowed in part but in the circumstances, without any order as to costs. ____________________ SANJAY KUMAR, J. 6TH DECEMBER, 2010. VGSR/PGS [1] (2007) 2 SCC 433