IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTIETH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION No.15987 of 1999 Between: A.P.S.R.T.C., Rep. by its Depot Manager Bodhan Depot, Nizamabad District. ..... PETITIONER AND 1 The Presiding Officer Labour Court-II Chandra Vihar, Hyderabad. 2 Jeevan S/o.Limbanna R/o.Amdapur Village, Khanapur Post, Armoor Mandal, Nizamabad District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly in the nature of Writ of Certiorari by calling for the records from the 1st Respondent in M.P.No.6 of 1997 dt. 23-07-98 and quash the Award and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner : SMT.B.G.UMA DEVI Counsel for the Respondent No.1 : GP FOR LABOUR Counsel for the Respondent No.2 : Sri V.Narasimha Goud The Court made the following : HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.15987 of 1999 ORAL ORDER : This writ petition is filed by the Andhra Pradesh State Road Transport Corporation (for brevity “the Corporation”) through its Depot Manager, Bodhan Depot, Nizamabad District, challenging the order, dated 23-07-1998, in Miscellaneous Petition No.6 of 1997, passed by the Labour Court-II, Hyderabad (for brevity “the Labour Court”). 2. The second respondent herein was appointed as Conductor in the service of the Corporation in the year 1971. During the year 1973, disciplinary proceedings were initiated against him and by order, dated 13-09-1973, he was removed from service. The second respondent has questioned the validity of the said removal order by raising a dispute in I.D.No.120 of 1992 (old I.D.No.767 of 1987) before the Labour Court. The Labour Court, by its Award, dated 25-05-1993, interfered with the said order of removal in view of its conclusion that the order of removal is disproportionate to the gravity of the charges levelled against the second respondent. Accordingly, directions were issued to the Corporation for reinstatement of the second respondent into service without break in service, but without backwages. Consequent to the said order, the second respondent was reinstated into service on 29-09-1993 and subsequently promoted to the post of Assistant Depot Clerk. 3. On the ground that after reinstatement into service, from 05-09-1993 to 27-05-1994, his pay was not correctly fixed, the second respondent filed E.P.No.4 of 1994 in I.D.No.120 of 1992 claiming an amount of Rs.15,883-65 ps and the said E.P. was ordered by the Labour Court. On deposit of the said E.P. amount, it is stated that the entire amount of Rs.15,883-65 ps was withdrawn by the second respondent. 4. Alleging that an amount of Rs.5,424-68 ps was wrongly paid and the same is to be recovered from the amount of Rs.15,883-65 ps, the Corporation had recovered the said amount @ Rs.1,085/- per month from November, 1996 onwards. After recovery of the said amount of Rs.5,424-68 ps, the second respondent has filed the present Miscellaneous Petition under Section 33-C (2) of the Industrial Disputes Act, 1947 (for brevity “the Act”), claiming an amount of Rs.66,585-78 ps, which includes Rs.5,424-68 ps recovered from him on account of wrong fixation of his salary after his reinstatement into service pursuant to the Award, dated 25-05-1993, passed by the Labour Court in I.D.No.120 of 1992. 5. In the Miscellaneous Petition filed under Section 33-C (2) of the Act, it was the case of the second respondent that in view of the relief granted by the Labour Court with regard to continuity of service, the Corporation ought to have fixed his pay by adding notional increments even for the period for which he was out of service. He also pleaded in the said petition that he is eligible for pay fixation in the Revised Pay Scales of 1976, 1980, 1985, 1989 and 1993. The said petition filed by the second respondent was resisted by the Corporation on the ground that the second respondent is not entitled for re-fixation and arrears of salary on account of notional increments, so far as pay fixation is concerned, it was the case of the Corporation that the second respondent is entitled for Revised Pay Scales of 1976, 1980, 1985, 1989 and 1993 and his scale was fixed by taking the same into account. 6. The Labour Court, by the impugned order, dated 23-07-1998, interpreting the word “reinstatement”, has recorded a finding that once there is a direction for reinstatement of the employee, he is automatically entitled for notional increments, Revised Pay Scales etc. The Labour Court took the view that once the continuity of service is extended after reinstatement, wages of the second respondent ought to have been fixed by taking the notional increments into consideration. 7. Heard learned Standing Counsel appearing for the Corporation and Sri V.Narasimha Goud, learned counsel appearing for the second respondent. 8. In this writ petition, it is mainly the case of the Corporation that inasmuch as there was no direction in the Award, dated 25-05-1993, passed by the Labour Court in I.D.No.120 of 1992, to extend the benefit of notional increments or any attendant benefits, the second respondent is not entitled for any arrears as ordered by the Labour Court. It is submitted that merely because reinstatement is ordered with continuity of service, the second respondent is not entitled for notional increments unless there is a specific direction, in this regard. 9. On the other hand, it is submitted by the learned counsel appearing for the second respondent that the second respondent has filed another writ petition in W.P.No.23745 of 1999 seeking a direction for re- fixation of his salary by extending the benefit of notional increments and, however, during the pendency of the said writ petition, the Corporation has already re-fixed the salary of the second respondent by taking into consideration the aspect of extending the benefit of notional increments. It is further submitted that as much as the re-fixation was already done, the matter was not adjudicated on merits. 10. He also submits that as much as the arrears were also paid in view of the vacation of the interim orders passed by this Court in this writ petition, the cause in the present writ petition has become infructuous. 11. The contention of the learned counsel for the second respondent cannot be countenanced in view of the fact that merely because some amounts towards arrears are paid during the pendency of the writ petition, it cannot be said that the cause in the writ petition has become infructuous. 12. However, in view of the respective submissions, it is to be noticed that after the Award, dated 25-05-1993, passed by the Labour Court in I.D.No.120 of 1992, the second respondent was reinstated into service. When E.P.No.4 of 1994 in I.D.No.120 of 1992 was filed by the second respondent, there was an order passed by the Executing Court for payment of Rs.15,883-65 ps. Pursuant to such order, the Corporation had deposited the said amount and the same was withdrawn by the second respondent. When an order is passed by the Executing Court for payment of Rs.15,883-65 ps, it is not open for the Corporation to recover an amount of Rs.5,424-68 ps unilaterally on the ground that the said amount was paid erroneously. If any such objection is there, the Corporation must have moved the Executing Court to modify the order in E.P.No.4 of 1994. 13. So far as the claim of the second respondent for remaining amount of arrears on the ground that re-fixation of his pay was wrongly done without extending the benefit of notional increments is concerned, the said issue is no more res integra in view of the judgments rendered by the Apex Court in APSRTC v. ABDUL KAREEM[1] and J.K. SYNTHETICS LTD. v. K.P.AGRAWAL[2]. 14. In ABDUL KAREEM’s case (1 supra), the very issue viz., entitlement of the workman for claiming increments was considered by the Apex Court when the benefit of continuity of service was given. In the aforesaid judgment, the Apex Court held that the workman is not entitled to any increments notionally for the period for which he was out of service in the absence of any specific direction, in that regard. 15. In the case on hand, from a bare perusal of the Award, dated 25-05-1993, passed by the Labour Court in I.D.No.120 of 1992, it is clear that there is no specific direction either for extending the benefit of notional increments or any other attendant benefits. The reasoning assigned by the Labour Court in the impugned order cannot be sustained in view of the judgments of the Apex Court referred to above. 16. For the foregoing, the order impugned in this writ petition is liable to be set aside except to the extent of an amount of Rs.5,424-68 ps, which is covered by the order passed by the Executing Court in E.P.No.4 of 1994. 17. Accordingly, the order, dated 23-07-1998, passed by the Labour Court, in M.P.No.6 of 1997, is set aside only to the extent of claiming arrears of wages for the period from 28-05-1994 to 08-03-1997, however, confirming the order to the extent of payment of Rs.5,424-68 ps recovered from the salary of the second respondent. 18. In the result, the writ petition is allowed to the extent indicated above. There shall be no order as to costs. ________________________ R.SUBHASH REDDY, J 20-11-2008. Msr HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.15987 of 1999 20-11-2008 Msr [1] (2005) 6 SCC 36 [2] (2007) 2 SCC 433