THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 19614 of 1998 ORDER: This writ petition has been preferred by a driver of the Andhra Pradesh State Road Transport Corporation questioning the legality and validity of the part of the award passed by the Industrial Tribunal, Guntur in Industrial Dispute No. 64 of 1992 wherein the writ petitioner has been denied the payment of backwages. It is the case of the writ petitioner that while he was working as a driver at Guntur Depot, he was responsible for establishing the trade union in the name of Andhra Pradesh State Road Transport Corporation Drivers and Mechanical Staff Trade Union, Guntur. Since he was espousing the cause of the drivers and mechanical staff employed in the APSRTC, Guntur Depot and since he was responsible for brining out the infirmities committed by the Depot Manager, who has been imposed fine thrice by the Labour Officers of the State Government, the Depot Manager bore grudge against the writ petitioner and as a measure of victiminsation unjustly subjected him to disciplinary proceedings after suspending him from the service on 8.2.1984. An untenable charge has been laid against the petitioner that he was purposefully and deliberately denied to take on route and ply the bus which has been certified as mechanically fit, notwithstanding the enormous defects pointed out by the petitioner. The writ petitioner has participated in the enquiry proceedings, which have been abruptly concluded by the Enquiry Officer, who has submitted his report on 5.12.1984 holding the writ petitioner guilty of the charge framed against him. As the Depot Manager was out to take vengeance against the writ petitioner, a show cause notice was issued by him on 31.12.1984 proposing to impose a punishment of removal from service and inspite of a valid explanation submitted by the writ petitioner pointing out the grave and gross irregularities committed by the Enquiry Officer while conducting the enquiry proceedings and the unsustainability of the findings recorded by him, the Depot Manager proceeded further and imposed the punishment of removal from service through his proceedings dated 19.1.1985. Since the appeal preferred there against has been rejected by the Divisional Manager, he invoked Section 2-A(2) of the Industrial Disputes Act and raised an industrial dispute ID No. 64 of 1992. Inspite of ordering reinstatement with continuity of service, unjustly, the Industrial Tribunal has denied the benefit of backwages. Hence, this writ petition. The APSRTC has contested this writ petition. It was pointed out that the trade union activities indulged in by the writ petitioner have got nothing to do with the misconduct committed by him. It is asserted that inspite of the Mechanical Supervisor certifying the bus as fit for operation, the writ petitioner deliberately and purposefully avoided plying the same on the pretext that all the mechanical defects pointed out by the writ petitioner have not been attended to by the mechanical staff. As a result of the refusal of the writ petitioner to ply the buses allotted to him, the Depot Manager had to cancel abruptly some of the services and consequently the Corporation has sustained loss of revenue apart from suffering a dent to its image. It was further pointed out that the Industrial Tribunal has rejected all the contentions canvassed by the writ petitioner and held that the Enquiry officer had reasonable material to arrive at the conclusion that the charge laid against the petitioner is proved. However, the Industrial Tribunal had chosen to exercise the discretion available with it in terms of Section 11-A of the Industrial Disputes Act and has substituted the punishment with that of stoppage of two increments with cumulative effect, while ordering reinstatement with continuity of service benefits. Sri V.V.Sarma, learned counsel strenuously urges that when ones an employee has been ordered to be reinstated to duty duly setting aside the grave punishment of removal from service, the Industrial Tribunal ought to have awarded backwages. It was further contended that the Industrial Tribunal has ignored the plea raised by the petitioner that he was not employed gainfully during the period after his removal from service by the APSRTC and hence backwages should have been awarded as a normal rule. Learned counsel further urges that only in exceptional circumstances and cases, the benefit of backwages could have been denied to the petitioner and in the instant case, there are no such exceptional circumstances and hence as was held by the Delhi High Court in SUNDER DASS VS. ASTHETIC EXPORTS PRIVATE LIMITED[1], backwages ought to have been awarded as a normal rule. Learned counsel has also placed reliance upon the judgment rendered by this court in 1985(3) ALT 407 (???) and the judgment rendered by Punjab & Haryana High Court in 1981(1) SLR 606 (???), 1981(1) SLR 646 (???). Learned counsel also placed reliance upon the judgment rendered by the Supreme Court in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya[2]. The all important question that is needed to be determined in this case is whether the writ petitioner is entitled to be awarded payment of backwages at all and if he is entitled to be awarded what should be the quantum of such payment? The undisputed facts which were held established are these: The writ petitioner while working as a driver has declined to ply the buses allotted to him between 26.1.1984 to 7.2.1984 on one pretext or the other inspite of the certificate issued by the Mechanical Supervisor, or Mechanical Assistant Foreman, as the case may be. In the log sheets, the writ petitioner has noted a number of defects for the buses allotted to him and on the ground that all those defects have not been rectified has declined to operationalise the bus service. As a consequence of this adamant attitude adopted by the writ petitioner, several services have been cancelled and consequently the corporation has sustained loss of revenue. The Enquiry Officer as well as the Industrial Tribunal had noticed that that the buses offered to be serviced by the writ petitioner were in fact entrusted to two other drivers and they have safely conducted the trips and returned the buses to the destination without any loss of time or causing any accidents. Further, the buses offered to the writ petitioner were in fact operationalised on the previous days by different sets of drivers without any complaints whatsoever and that they have reached the destinations absolutely safely. Such of those drivers who have operated the buses have never complained of any defects much less any inconvenience encountered by them in the matter of negotiating the buses enroute. These allegations stood unrebutted by the writ petitioner. It therefore becomes crystal clear that the writ petitioner has resorted to avoidance of duty entirely on one lame excuse or the other. All the defects noted by the writ petitioner in the log sheets perhaps do not warrant the service of the bus to be stopped. Some of the defects could be so minor or trivial that they may not warrant any immediate attention much less warranting withholding of the trip itself. It is only the major defects, which might pose a risk both to the passenger public as well as the other road users, which required to be tended immediately. When once a competent mechanical workshop employee, either a Supervisor or the Assistant Mechanical Foreman certifies a particular bus as in a fit condition, it is only appropriate that the bus should be operationalised. Viewed from the specific angle that the very same bus which was offered to the writ petitioner has been operationalised by another driver either on the same day or on the previous day without any grievance or complaint would certainly lend credence to the conclusion that it is the writ petitioner’s adamant attitude but not the true and genuine defects of the buses, that compelled certain services to be cancelled. In the process, the corporation has sustained loss of revenue. It is more than clear that the writ petitioner was nurturing imaginary grievances about the fitness of the vehicles entrusted to him for plying by the corporation. It can hardly be doubted that the corporation also takes care to ensure that no seriously defective bus is operationalised. Firstly, it might pose a risk both for the travelling public as well as other road users, in which event, it is the corporation which will have to pay the enormous compensation. That apart, a breakdown enroute, would only bring bad name to the corporation far from enhancing its reputation. Therefore, it is in the fitness of things that the corporation and its officials will endeavour to ensure that no seriously defective buses are put on service. Some of the minor are not serious defects warranting any immediate attention need not necessarily result in the bus in the question from being withdrawn from service. Buses are the essential infrastructure of a corporation like that of the respondent corporation. Only when they ferry the passengers, they earn revenue. If such infrastructural facilities are put to idle use, it is bound to result in loss of productivity and consequential loss of revenue. In response, employee of the corporation should endeavour to contribute to the productivity of a corporation, which is a public sector undertaking. The essential motto of a public sector undertaking like that of APSRTC is to provide transportation facilities to the general public. In other words, while catering to this essential necessity of the general public it keeps generating revenue. Therefore, every employee of the corporation is required to endeavour to contribute his mite for rendering the services to the public at large. Any attitude which reflects lack of anxiety to serve this public cause is bound to be viewed with adequate seriousness. Therefore, the action of the respondent corporation subjecting the writ petitioner to disciplinary proceedings cannot be viewed as an act of victimization unleashed against him to wreck vengeance for his trade union activities. While dealing with his contention that the Enquiry Officer has abruptly concluded the disciplinary proceedings and thus denied him a reasonable opportunity of establishing his defence, the Industrial Tribunal has clearly noted that the Enquiry Officer has exhibited utmost patience and care while conducting the enquiry proceedings. Even after subjecting the Assistant Mechanical Foreman of the Depot to cross-examination by putting as many as 200 questions, if one were to call that the enquiry proceedings have been abruptly concluded, there does not appear to be any tenability behind such claims. Therefore, the Industrial Tribunal has rightly rejected the contention canvassed by the writ petitioner in that regard. The Industrial Tribunal has also rightly rejected the contention canvassed by the writ petitioner that the Discipline Control and Appeal Regulations framed by the APSRTC are not validly made by pointing out that when once the High Court of Andhra Pradesh held them to have validly held, such a question cannot be agitated before the Industrial Tribunal again. The contention of the writ petitioner that the Depot Manager could not have been constituted as a disciplinary authority as the authority who framed the regulations himself being a delegated could not have further delegated the disciplinary powers in favour of the Depot Manager, has been rightly rejected. While framing the regulations, the Depot Manager who is the appointing authority for drivers has been constituted as the disciplinary authority. Hence, there was no difficulty in rejecting such an untenable contention of the writ petitioner. It is appropriate at this stage to notice the following from the award of the Industrial Tribunal: “5…….But in this particular case, the evidence on record clinchingly and clearly established the fact that the claimant herein with a particular motive did not choose to operate the vehicles given to him by raising some flimsy and silly defects which are not in any way effect the travel of the vehicles………. So, because of this kind of attitude of the claimant most of the services are cancelled and thereby there is heavy loss caused to the corporation….. Thus, the Industrial Tribunal has held the writ petitioner guilty of the charge. But, however, preferred to exercise the discretionary power available to it in terms of Section 11-A of the Industrial Disputes Act. It has concluded the issue in that respect in the following manner: The respondent Depot Manager has rightly considered the report of the enquiry, besides all the records, has come to the right conclusion that the charge framed against the claimant is proved beyond doubt. I do not find any convincing reasons to hold that the charges framed against the claimant is not proved….. ………. …. I feel that it is a fit case to give one more opportunity to the claimant to mend his behaviour in future and to act properly as per the directions of the superiors. This is a fit case to invoke Section 11-A of Industrial Disputes Act and to take a lenient view by ordering reinstatement of the claimant into service with continuity of service but without backwages and also to impose punishment of deferment of two annual increments with cumulative effect. These points are answered accordingly.” It is appropriate to notice as to how the discretion vested in the Industrial Tribunal under Section 11-A of the Industrial Disputes Act is required to be exercised from the judgment rendered by the Supreme Court in Hindustan Motors Ltd case (supra ). ( 11 ) UNDER Section 11-A as amended in 1971, the Industrial Tribunal is statutorily mandated, while setting aside the order of discharge or dismissal and directing reinstatement of the workman to consider the terms and conditions, subject to which the relief should be granted or to give such other relief to the workman including the award of any other punishment in lieu of the discharge or dismissal, as the circumstances of the case may require. The section is couched in wide and comprehensive terms. It vests a wide discretion in the Tribunal in the matter of awarding proper punishment and also in the matter of the terms and conditions on which reinstatement of the workman should be ordered. It necessarily follows that the Tribunal is duty bound to consider whether in the circumstances of the case, back wages have to be awarded and if so, to what extent. ( 12 ) FROM the award passed by the Industrial Tribunal which has been confirmed by the Division Bench of the High Court it is clear that the order for payment of full back wages to the workman was passed without any discussion and without stating any reason. It appears that the Tribunal and the Division Bench had proceeded on the footing that since the order of dismissal passed by the Management was set aside, the order of reinstatement with full back wages was to follow as a matter of course. ( 13 ) IN Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others, (1979 (2) SCC 80), a three- judge Bench of this Court laid down : "in the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. On the question of award of the backwages, all the principles have been reviewed by the Supreme Court in J.K.Synthetics Ltd. v. K.P.Agarwal[3]. It would be absolutely profitable to note those principles. ( 15 ) BUT the manner in which 'back-wages' is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U. R State Brassware Corpn. Ltd. v. Udai Narain Pandey, this Court following allahabad Jal Sansthan v. Daya shankar Rai2, and Kendriya Vidyalaya sangathan v. S. C. Sharma held as follows. 1. JT 2005 (10) SC 344; 2006 (1) SCC 479 2. JT 2005 (5) SC 112: 2005 (5) SCC 124 3. JT 2005 (1) SC 336; 2005 (2) SCC 363 "a person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. " "although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the courts realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. . . . . . . . . . The changes (were)brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6n of the UP. Industrial Disputes Act. . . . . . . . While grant- ing relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot therefore be the natural consequence. In General Manager, Haryana Roadways v. Rudhan Singh1, this Court observed : "there is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25f of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i. e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i. e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year. " ( 16 ) THERE has also been a noticeable shift in placing the burden of proof in regard to back wages. In Kendriya Vidyalaya sangathan (supra), this Court held : ". . . When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places ' materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard. " In U. P. State Brassware Corpn. Ltd. (supra), this Court observed :"it is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. " ( 17 ) THERE is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/ or 'consequential benefits' should also be directed. We may in this behalf refer to the decisions of this Court in A. P. S. R. T. C. v. S. Narasa Goud1, A. P. S. R. T. C. v. Abdul kareem2 and R. S. R. T. C. v. Shyam Bihari lai Gupta3. ( 18 ) COMING back to back- wages, even if the court finds it necessary to award back-wages, the question will be whether back- wages should be awarded fully or only partially (and if so the percentage ). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back-wages, in addition to the several factors mentioned in Rudhan singh (supra) and Udai Narain Pandey. (supra ). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. ( 19 ) BUT the cases referred to above, where. back-wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement)is by way of punishment for misconduct