THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.128 OF 2006 23RD NOVEMBER, 2010 BETWEEN: The Depot Manager, APSRTC, Falaknuma Depot, Falaknuma, Hyderabad. … Petitioner A n d Jaffar Hussain and another. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.128 OF 2006 O R D E R The Andhra Pradesh State Road Transport Corporation (APSRTC) through its Depot Manager, Falaknuma Depot, Hyderabad, challenges the Award dated 28.04.2005 passed by the Labour Court-I, Hyderabad, in I.D.No.195 of 2002. By the said Award, the Labour Court set aside the removal from service visited upon the first respondent-workman under order dated 19.06.2001 and directed his reinstatement in service with 50% back wages, continuity of service and attendant benefits. This Court while admitting the writ petition on 20.02.2006, suspended the Award under challenge only to the extent of the back wages. The first respondent was therefore reinstated in service. However, in spite of service of notice, he did not choose to put in an appearance before this Court either in person or through counsel in the present case. The first respondent was subjected to disciplinary proceedings under charge-sheet dated 10.01.2001 on the ground that he had collected Rs.55/- in excess for renewing a General Bus Ticket of Rs.280/- denomination. After due enquiry, the APSRTC removed him from service by order dated 19.06.2001. His appeal having met with failure, the first respondent approached the Labour Court by way of the subject I.D. The Labour Court upon re-appreciation of the evidence adduced in the enquiry came to the conclusion that the misconduct alleged against the first respondent was not established. In so far as the award of half the back wages is concerned, the Labour Court opined that as the first respondent was out of service during the break period he would be entitled to only restricted amount of back wages. However, it is relevant to note that there is no discussion by the Labour Court as to why it granted even half the back wages and whether the first respondent was gainfully employed during the period that he remained out of the service of the APSRTC. The first respondent failed to make an averment in his claim petition before the Labour Court that he was without employment during the said period and that he did not have any other source of income. As per the law laid down by the Supreme Court in J.K.SYNTHETICS LIMITED V/s. K.P.AGRAWAL[1], it would be necessary for the workman to plead on oath before the Labour Court that he was not employed and that he did not have any other income during the period that he remained out of service. It is only thereafter that the burden would shift to the employer. The first respondent in the present case failed to fulfill this minimum requirement. In that view of the matter, the Labour Court was not justified in granting back wages to the first respondent even partially. In so far as the merits of the case are concerned, the Labour Court explained cogently as to why it found that the evidence placed on record during the enquiry did not support a finding of guilt against the first respondent in so far as the charge is concerned. This Court finds no reason to disagree with the Labour Court on this count. However, the direction with regard to payment of 50% of the back wages is found to be unsustainable. The Award under challenge is accordingly modified to the extent of setting aside the direction to pay 50% of the back wages to the first respondent. It shall stand confirmed in all other respects. The writ petition is allowed in part. No order as costs. -------------------------- SANJAY KUMAR,J 23rd NOVEMBER, 2010 PGS THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.128 OF 2006 23rd NOVEMBER, 2010 [1] (2007) 2 SCC 433