IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SEVENTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 5580 of 2002 Between: T. Chinnaiah, S/o. Balaguraiah, R/o. Porumamilla Mandal and Village, Cuddapah District. ..... PETITIONER AND 1 Industrial-cum-Labour Court, Rep. Chairman-cum-Presiding Officer, Anantapur, Anantapur District. 2 The Depot Manager, APSRTC., Badvel, Cuddapah 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 to issue a writ, order or direction esepcially one in the nature of Writ of Certiorari calling for the records in I.D.No. 100/98 on the file of Industrial Tribunal-cum-Labour Court, Anantapur dt. 27-6-2002 which was published in G.O.Rt.No. 2060, Labour, Employment, Training and Factories (Lab.I) Department, dt. 20-10-2000 and quash the same in so far as it denies back wages to the petitioner while confirming the other part of the directions made in the I.D. and further declare that petitioner is entitled to be paid back wages for the period from 7-2-1997 to the date of his reinstatement in January, 2001 and pass Counsel for the Petitioner:MR.M.SURENDER RAO Counsel for the Respondent No.: SMT.W.V.S.RAJESWARI The Court made the following : ORAL ORDER: The petitioner who is a Conductor, filed this Writ Petition seeking Writ of Certiorari calling for the records in I.D.No. 100 of 1998 on the file of Industrial Tribunal-cum-Labour Court, Anantapur dated 27.6.2000, which was published in G.O.Rt.No. 2060, Labour, Employment, Training and Factories (Lab.I) Department dt. 20.10.2000 and quash the same in so far as it denies back wages to the petitioner while confirming the other part of the directions made in the I.D. and further declare that petitioner is entitled to be paid back wages for the period from 7.2.1997 to the date of his reinstatement in January, 2001. The case of the petitioner is that he was appointed in the respondent-Corporation as Conductor on 31.3.1978. While he was conducting the bus on 13.9.1998 on the route from Porumamilla to Badvel a check was exercised by the checking officials and found certain irregularities. Therefore, he was placed under suspension and was issued charge sheet on 23.9.1996 with the following charges: “Charge No. 1: “For having failed to observe the rule “issue and start’ conducting the service porumamilla- badvel on 13.9.1996 by the vehicle No. AP9Z 1550, which constitutes a misconduct under Reg. 28 (xxxii) of APSRTC Employees” (Conduct) Regulations, 1963.” Charge No. 2: “For having failed to collect the requisite fare and issue tickets to 4 batches of passengers (15+8+15+10) who boarded your bus at Munnelli X Roads and bound for Payalakuntla ex- stages 7/6 to 5 as per the version of the Heads of the 4 batches which is a serious misconduct under Reg. 28 (vi) (a) of APSRTC Employees’ (Conduct) Reg. 1963.” Charge No. 3: “for having failed to issue tickets to 4 batches of passengers who boarded your bus Munelli X Roads and had the check has not been expected at the alighting point, you would have pocket the amount resulting to the leakage of revenue of the corporation, which shows your fraudulent motive, which is a serious misconduct under Reg. 28(x) of APSRTC Employee’s (Conduct) Reg. 1963.” Charge No. 4: “For having failed to close the S.R of all denominations up to stage No. 6 and 5 even the vehicle was expected for alighting which is a serious misconduct under Reg.28 (xxxii) of APSRTC Employees’ (conduct) Reg. 1963.” The petitioner submitted his explanation on 26.9.1996 denying the charges. Thereafter an enquiry was conducted and the Enquiry Officer submitted his report on 10.1.1997. Basing on the said enquiry report, the petitioner was issued a show cause notice on 29.1.1997 and he submitted an explanation denying all the allegations. Thereafter on 7.2.1997 the Depot Manager issued proceedings removing the petitioner from service. Aggrieved by the same, he filed an appeal, which was rejected by the appellate authority on 23.10.1997. Thereafter, the petitioner also filed a review petition, which was also rejected by the reviewing authority on 26.2.1998. Aggrieved by the same, he raised an Industrial Dispute vide I.D.No. 100 of 1998 on the file of the Industrial Tribunal –cum- Labour Court, Anantapur under Section 2(A)2 of the Industrial Disputes Act. The learned Labour Court passed an award on 27.6.2000 setting aside the order of the removal by ordering for reinstatement of the petitioner with continuity of service but without any back wages. Partly aggrieved by the award passed by the labour court in so far as denying the back wages, the present Writ Petition has been filed. The learned counsel appearing for the petitioner submitted that once the labour court passed an award after considering the merits of the case and after exercising Section 11 A of the Industrial Disputes Act and set aside the removal order and ordered continuity of service, it is natural to follow the consequential benefits of granting of back wages, which have been denied by the labour court. Therefore, it does not amount to exercise of power under Section 11(A) of the Industrial Disputes Act, and not granting the back wages is illegal on the part of the labour court. He also submitted that the petitioner was not engaged in any alternative employment during the course of enquiry i.e. from the date of suspension to the date of reinstatement. Therefore, having been held that the petitioner is not guilty of the charges, considering the merits of the case, the learned labour court ought to have awarded the back wages too. It is also submitted that the award of the labour court without back wages created hurdles in the service of the petitioner with regard to the fixation of pay and granting of increments etc. Therefore, he submitted that the impugned award to the extent of not granting any back wages is liable to be set aside and consequently the petitioner is to be declared that he is entitled for back wages for the period from 7.2.1997 to the date of his reinstatement in the month of January 2001. The learned Standing Counsel appearing for the respondent- Corporation on the other hand, submits that the respondent- Corporation after considering the merits of the case has imposed the punishment of removal of the petitioner from service and the labour court considering his case on humanitarian grounds having been set aside the order of removal passed an award directing the respondent- Corporation to reinstate the petitioner with continuity of service and therefore, he is not entitled for any back wages. She also submits that it is not the case where the petitioner is to be exonerated from the charges levelled against him and when once the charges have been proved, the petitioner is liable for punishment, but however, the labour Court considered the gravity of the charges and modified the punishment of removal to that of reinstatement with continuity of service. Therefore, it is not a case where mis-conduct is not proved. Once the mis-conduct is proved, the petitioner cannot be exonerated from the charges and the labour court having considered the matter rightly held that the petitioner is entitled for reinstatement and accordingly the petitioner is continued in service and therefore, she submits that award does not suffer from any illegality or irregularity. In support of her contentions she also relied on the decision of the Supreme Court in J.K.SYNTHETICS LIMITED VS. K.P. AGRAWAL AND ANOTHER[1]. Admittedly, the petitioner is a conductor. He was appointed in the respondent-Corporation on 31.3.1978. On the charges referred to above, after conducting due enquiry, the petitioner was removed from service and the order of removal has been confirmed by the appellate authority as well as the revisional authority. Questioning which, when the petitioner raised an industrial dispute by way of filing an I.D, being I.D.No. 100 of 1998, on the file of Industrial Tribunal-cum- Labour Court, Anantapur, the leaned Labour Court considered the charges levelled against him, and based on evidence held that the charges are not proved against the petitioner and accordingly set aside the order of removal and directed reinstatement with continuity of service, but denied the back-wages on the principal law of ‘no work no pay’. In this petition, the petitioner is claiming back-wages. In order to consider whether the petitioner is entitled for back wages, it is necessary to look into the judgment of Apex Court in J.K. SYNTHETICS LIMITED VS. K.P. AGRAWAL AND ANOTHER (supra- 1), wherein certain guidelines have been laid with regard to payment of back-wages. The relevant portion at paragraph Nos. 18 and 19 is extracted as under: “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 and Uday Narain Pandey. 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 in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The Court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity o service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and I reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In case where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.” From the above judgment of the Apex Court it is clear that if the termination is set aside on the ground that the employee is exonerated from the charges and that he is found not guilty of the misconduct, he is entitled for back-wages. However, the employee has to necessarily plead that he was not gainfully employed from the date of termination and then the burden shifts on the employer. In the present case, the Tribunal found that termination is illegal, but however ordered reinstatement and did not grant back- wages on the principle of ‘no work and no pay’. The Corporation did not choose to challenge the award of the Tribunal. The petitioner did not state in specific terms on oath that he was neither employed nor engaged in any gainful business or that he did not have any income. But the Tribunal found that petitioner is not having any employment since the date of removal. The said observation is without any pleading and hence cannot be taken to award back-wages. In the absence of any specific averment in this regard, as laid down by the Apex Court, no back-wages can be granted. Hence, non- granting of back-wages cannot be interfered with. For the foregoing reasons, I do not find any merit in the Writ Petition and the same is dismissed. No costs. ____________________ G. CHANDRAIAH, J Date: 17.10.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Industrial-cum-Labour Court, Rep. Chairman-cum-Presiding Officer, Anantapur, Anantapur District. 2 The Depot Manager, APSRTC., Badvel, Cuddapah District. 3. 2CCs to Govt.Pleader for Labour , High Court of A.P. Hyderabad. 4 .2CD copies [1] (2007) 2 SUPREME COURT CASES 433