THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1176 OF 2005 DATED 9TH DECEMBER, 2009 BETWEEN M.Linganna … Petitioner and The Depot Manager, APSRTC, Bus Depot, Banswada, Nizamabad District. … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1176 OF 2005 O R D E R The claimant in I.D.No.8 of 1999 on the file of the Labour Court-II, Hyderabad, filed the present writ petition aggrieved by the Award dated 04.01.2002 to the extent it denied him back wages. The claimant/petitioner was appointed as a Cleaner in the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) on 27.01.1976 and was promoted as a Tyre Mechanic on 13.07.1991. He was subjected to disciplinary proceedings under charge sheet dated 13.08.1998 on two charges, viz. – “Charge No.1: For having unauthorisedly absented for duty from 05.08.1998 to 11.08.1998 without prior permission or sanction of leave from the competent authority, due to which, dislocation of day-to-day work in maintenance section as a result, late supply of vehicles and inconvenience caused to the travelling public besides loss of Rs.1000/- per day to the Corporation i.e., Rs.7000/- which is serious misconduct in terms of Reg.28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963. Charge No.2: For having habituated to absent for duty by way of absent though you are counseled several times, you are failed to improve your attendance, which speaks that you are not interested to work in the corporation, which is serious misconduct in terms of Reg.28(xxxi) of APSRTC Employees (Conduct) Reg. 1963.” The petitioner submitted his explanation to the said charge sheet denying the allegations. Being dissatisfied therewith, the APSRTC instituted an enquiry into the matter and thereupon issued a Show Cause Notice proposing the punishment of removal from service. The petitioner submitted his explanation thereto and after considering the same, the proceedings dated 15.09.1998 were issued removing him from service. The petitioner challenged his removal from service in the subject I.D. before the Labour Court. The APSRTC filed its counter before the Labour Court stating that the enquiry had been held in accordance with the due procedure. It was stated that in spite of several opportunities being given to the petitioner, he failed to avail the same and accordingly, the APSRTC was constrained to conduct an ex parte enquiry wherein the charges levelled against the petitioner were held proved. Upon considering the material on record, the Labour Court was of the opinion that the second charge levelled against the petitioner with regard to irregular absence was vague and that no details had been placed on record during the enquiry in this regard. Accordingly, the finding on this charge was held to be perverse. However, the Labour Court found that Charge No.1 was established in as much as the petitioner was unable to prove that he had sent a telegram seeking leave from 05.08.1998 to 10.08.1998. Consequently, the Labour Court held that the petitioner was unauthorisedly absent from duty from 05.08.1998 to 10.08.1998. However, the fact that the petitioner had rendered more than 22 years of service and the misconduct alleged and proved against him was only absence from duty without authorization from 05.08.1998 to 10.08.1998 weighed with the Labour Court. The Labour Court, considering the age and service of the petitioner, held that the punishment imposed upon him was harsh and shockingly disproportionate and directed the APSRTC to reinstate him in service with continuity of service but without back wages. The APSRTC did not choose to challenge the above Award and in pursuance thereof the petitioner is said to have been reinstated in service on 26.04.2002. Therefore, the only issue that arises for consideration in this writ petition is the entitlement of the petitioner to claim back wages for the period that he remained out of service i.e., from 15.09.1998 to 26.04.2002. It is now well established that entitlement to back wages is no longer considered to be an automatic and natural consequence of reinstatement in service. The Labour Court is required to take into consideration several factors such as the length of service rendered by the workman, the nature of reinstatement, that is, whether it is a misconduct reinstatement on the ground of proportionality or whether it is owing to illegal termination. The Labour Court also has to consider whether the workman was gainfully employed elsewhere during the period that he remained out of service. It is only after considering these aspects that the Labour Court can award or deny back wages in their entirety or partially. In the present case, the Award under challenge reflects that no such exercise was undertaken. Sri V.Narsimha Gound, learned counsel for the petitioner, placed reliance upon the judgment of the Supreme Court in SYED ZAHEER HUSSAIN V/s. UNION OF INDIA[1], wherein the Supreme Court was dealing with unauthorized absence of the employee for a period of six days, as in the present case. The Supreme Court concurred with the finding of the Tribunal that the punishment of dismissal from service in such circumstances was too harsh and required to be substituted by an appropriate lesser punishment. Accordingly, the Supreme Court directed reinstatement of the employee in service with continuity of service and other benefits, but restricted his entitlement to back wages to 50% of the amount payable. This punishment, according to the Supreme Court, would meet the ends of justice and would also be a sufficient corrective measure. In J.K.SYNTHETICS LIMITED V/s. K.P.AGRAWAL[2], the Supreme Court indicated the broad spectrum of factors which would have to be considered while awarding or denying back wages. The observations of the Supreme Court in this are apposite: “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 [(2005) 6 JT 137] and Udai Narain Pandey [(2005) 10 JT 344]. 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. ………” In the light of the aforestated observations and keeping in mind the fact that the petitioner herein had rendered over 22 years of service and the misconduct alleged against him was only unauthorized absence for a period of six days, he ought not to have been denied back wages in their entirety. Applying the standard adopted by the Supreme Court in SYED ZAHEER HUSSAIN, it would meet the ends of justice to direct the APSRTC to pay 50% of the back wages payable to the petitioner for the period that he remained out of service, i.e., from15.09.1998 to 26.04.2002. The writ petition is allowed in part. In the circumstances of the case, there shall be no order as to costs. -------------------------- SANJAY KUMAR,J 9TH DECEMBER, 2009. PGS/VGSR [1] 1999 LAB. I.C. 2616 [2] (2007) 2 SCC 433