IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTIETH DAY OF TWO THOUSAND AND EIGHT PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.22482 of 2000 Between: 1. A.P.S.R.T.C., Rep. by its Manging Director, Mushirabad, Hyderabad. 2. The Depot Manger, A.P.S.R.T.C., Yadagirigutta. ... PETITIONERS AND 1 Sri V.Rajeswar Goud, A.P.S.R.T.C., Narketpalli Depot, Nalgonda District. 2 The Labour Court-III, Rep by its Presiding Officer, Hyderabad. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ, order or direction, especially in the nature of a writ of Certiorari, calling for the records relating to the impugned award dt. 6-4-2000 made in I.D.No.279/96, Labour Court-III, Hyderabad, published on 27-5-2000 setting aside the order of the removal dt. 30-11-96 and directing reinstatement of 1st respondent into service with continuity of service, full backwages and attendant benefits; and quash the same being illegal, without jurisdiction and invalid. Counsel for Petitioners: SMT.B.G.UMA DEVI Counsel for Respondents: GP FOR LABOUR The Court made the following: Order: This writ petition, by the A.P. State Road Transport Corporation, through its Managing Director and the Depot Manager, Yadagirigutta, is filed challenging the validity of the award dated 06- 04-2000, passed by the Labour Court III, Hyderabad in I.D.No.279/96. 2. The first respondent herein is working as Driver in the APSRTC. On a complaint filed by one Sri Hariprasad, the Mandal Youth Congress Committee President on 26-03-1996, disciplinary proceedings were initiated against him. In the said complaint filed by the complainant, which is marked as Ex.M-1, it is alleged that the first respondent has assaulted him and also threatened the crewmembers of the bus bearing No.AP-9-Z-4410, which was being plied en-route Konderacheruvu to Yadagiriutta at about 8.15 hours on 26-03-1996. After conducing preliminary enquiry, charge memo dated 23-04-1996 was issued to the first respondent, which is marked as Ex.M-6, with the following charges: “1. Having assaulted Sri Hariprasad, R/o. Rajapet and also threatened the crew with consequences of Vehicle No.AP- 9Z 4419 of route Konderucheruvu, Yadagirigutta at about 8.15 hrs. on 26-3-96 at Rajapet bus stop, which constitutes misconduct on your part under Reg.28 (xi) of APSRTC Employees’ (Conduct) Reg. 1963. 2. For having operated illicitly under your personal supervision, the tempo No.AP.9.694 stated to be on the name of your wife, paralally with the APSRTC buses infringing the monopoly of APSRTC between Rajapet and Yadagirigutta on 26-3-96, which constitutes misconduct on your part under Reg.28(xxxi) of APSRTC Employees’ (Conduct) Reg.1963. 3. For having blocked the road at Rajapet bus stop parking your tempo No.AP.9.964. Obstructing the way for APSRTC buses particularly the vehicle No.9Z 4410 of route Konderucheruvu-Yadagirigutta at about 8.15 hrs. on 26-3-96, which constitutes misconduct on your part under Reg.28(xxxi) of APSRTC Emplyees’ (Conduct) Reg.1963.” 3. Though the first respondent has offered his explanation, not being satisfied with the same, he was proceeded with departmental proceedings for indiscipline. In the departmental proceedings, the first respondent was charge-sheeted vide Ex.M.9 and he denied the charges by filing his explanation vide Ex.M.10. In view of denial of charges, a regular enquiry officer was appointed to conduct enquiry on the charges framed against the first respondent. The enquiry officer recorded the statements of three witnesses, i.e. the Depot Manager, the Driver and the Conductor of the aforementioned bus and while recording his findings vide Ex.M.16 held that the charges framed against the first respondent were proved. Based on such findings, order dated 30-11-1996 was passed removing the first respondent from service and the same has been confirmed by the appellate authority in the departmental appeal filed by the first respondent/delinquent employee. Thereon, the first respondent raised an industrial dispute by filing an application under Section 2- A (2) of the Industrial Disputes Act, 1947, before the Labour Court III, Hyderabad, questioning the validity of his removal from service. The Labour Court, by the impugned award, holding that the charges leveled against the first respondent were not proved from the evidence on record, ordered his reinstatement into service with continuity of service and full backwages and all other attendant benefits. The said award is under challenge in this writ petition. 4. Heard Smt. B.G. Umadevi, learned Standing Counsel appearing for the petitioner-Corporation as well as Sri V. Narasimha Goud appearing for the first respondent-employee. 5. It is contended by the learned Standing Counsel for the petitioner-Corporation that though there were no valid grounds to interfere with the order passed by the disciplinary authority, the Labour Court exceeded its jurisdiction and passed the impugned award. It is further contended that as much as departmental enquiry was conducted by following the procedure as contemplated under Employees (Classification, Control and Appeal) Regulations, 1967 framed under Section 45(1) of the Road Transport Corporations Act, 1950, in absence of any procedural irregularity, the Labour Court erred in interfering with the order of removal passed by the disciplinary authority. It is submitted that having regard to the nature of charges framed against the first respondent and as he was out of service for about 3 ½ years, the Labour Court ought not to have awarded full backwages. The learned counsel, in support of his argument that where there is re-appreciation of the evidence by the Labour Court, it should be slow to interfere with the findings recorded by the enquiry officer, placed reliance on a judgment of the Hon’ble Supreme Court in the case of Usha Breco Mazdoor Sangh V. Management of M/s. Usha Breco Ltd., and another[1]. He has also placed reliance on two other judgments of the Hon’ble Supreme Court in J.K. Synthetics Ltd. V. K.P. Agarwal and another[2] and U.P. State Brassware Corpn. Ltd. V. Uday Narain Pandey[3], in support of his argument that award of full backwages is not a matter of course and payment of backwages fully or in part also depends upon facts and circumstances of each case, which has to be examined by the Labour Court. 6. On the other hand, it is contended by Sri V. Narasimha Goud, appearing for the first respondent, that in the case on hand, though certain charges alleging misconduct were framed against the first respondent, but, however, the enquiry officer in absence of any supporting evidence, in a routine and mechanical manner, recorded his findings to the effect that the charges framed against the first respondent are proved. It is further contended that as much as the findings recorded by the enquiry officer are erroneous and contrary to the evidence on record, it is always open for the Labour Court to re-appreciate the evidence on record, to come to a just conclusion. It is submitted that though departmental proceedings were initiated against the first respondent mainly basing on the complaint of Sri Hariprasad, however, in spite of several opportunities, he did not participate in the enquiry and the enquiry officer recorded findings in the absence of examining such a key witness to the proceedings. It is stated that non-examination of the said witness caused any amount of prejudice to the case of the first respondent and the Labour Court, taking the same into account, reversed the order of removal. It is submitted that with regard to running of tempo service in the name of the wife of the first respondent, vide charge No.2, and further allegation of blocking the road, vide charge No.3, the evidence which was recorded was contradictory and therefore the Labour Court has re-appreciated the evidence and came to a correct conclusion. It is also argued that, undisputedly, the first respondent was on leave on 26-03-1996 and in absence of any charge to the effect that the alleged misconduct was within the premises of the Corporation, the very framing of the first charge was baseless. The learned counsel, in support of the said argument, relied on a judgment of the Hon’ble Supreme Court in the case of M/s. Glaxo Laboratories (I) Ltd., V. Presiding Officer, Labour Court, Meerut and others[4]. In support of his argument that non-examination of a key witness prejudices the case of the employee, he has relied on the judgment in the case of Hardwari Lal V. State of U.P. and others[5]. 7. Before dealing with the various contentions of the learned counsel, in this case, it is to be noticed that the first respondent was removed from service on 30-11-1996, but, however, by the impugned award dated 06-04-2000, he was ordered to be reinstated into service with full backwages and attendant benefits. It is submitted that pursuant to the award of the Labour Court, the first respondent was reinstated into service in the year 2000 and is being continued in service since then. It is also stated that during the pendency of the proceedings, in view of the interim orders of this court dated 21-11-2000 and 23-03-2001 passed in WPMP No.28585 of 2000 and WVMP No.108 of 2001 respectively, 50% of backwages were already deposited and withdrawn by the first respondent. 8. Totally, three charges were framed against the first respondent. The first charge is with regard to assault on Sri Hariprasad and threatening the crewmembers of the service bus with dire consequences. The second charge is that he was operating tempo service, which is in the name of his wife, contrary to the interests of the Corporation. The third charge is that he has blocked the road at Rajapet Bus Station by parking the said tempo and obstructed the service bus of the Corporation. With regard to the first charge, the Labour Court has held that the said charge does not attract the provisions as the first respondent was not on duty and he has not assaulted any person and threatened the crewmembers of the bus and therefore the said charge is not maintainable. Though it is submitted by the learned counsel for the first respondent that there was no basis for framing of charge No.1, as the alleged misconduct was not within the premises of the Corporation, and in support of his argument, placed reliance on the judgment in the case of Glaxco Laboratories (4 supra), but, however, as I am of the view that the said charge is not held proved by recording valid and cogent evidence, it is not necessary to go into the issue whether the charge framed was within the framework of Regulation 28 (xi) of the APSRTC Employees’ (Conduct) Regulations, 1963. With regard to the second charge, the Labour Court has held that the first respondent was neither supervising the tempo service nor operating it for business purpose and that no material has been produced to show that the said service was in the name of his wife. Though the said charge is framed against the first respondent but, however, there is no evidence on record in support of the said charge. The petitioner- Corporation has not produced any evidence to show that the first respondent was operating the said tempo service to transport passengers. Though it is not in dispute that the tempo was in the name of his wife, but in view of the defence of the first respondent that he was using the tempo for the purpose of transporting family members, it cannot be said that he was acting contrary to the interests of the Corporation, so as to find fault with him. There is no evidence to show that he was using the said tempo for transporting passengers. With regard to the third charge, i.e. blocking the road with the said tempo, the Labour Court observed that the driver of the bus, Sri V.R. Reddy has stated in his statement, Ex.M.13, that when the bus reached Rajapet bus stand from Konderacheruvu, he had blown horn so as to enable the tempo parked at the bus stand to move and the tempo driver started moving it. Observing so, the Labour Court held that it cannot be said that the tempo has blocked the road, obstructing the way and therefore the said charge is disproved. It is alleged that, on 26-03-1996, at Rajapet Bus Depot, the tempo service which was being run in the name of the first respondent’s wife was obstructing the road and when Sri Hariprasad, the Mandal Youth Congress Committee President, asked to remove the same the first respondent assaulted Sri Hariprasad and also threatened the crew members of the bus. In the domestic enquiry, though a finding is recorded that the said charge is proved, but, however, it is not in dispute that Sri Hariprasad, who is stated to have been assaulted by the first respondent, is not examined. The first respondent was examined in the domestic enquiry proceedings and his statement is recorded under Ex.M.15, as per which it is stated that there was some altercation with Sri Hariprasad with regard to clearance of some amounts due from him, but it has nothing to do with his official work. The statements of the Depot Manager, who was traveling in the bus and the Conductor and Driver of the bus, were relied upon by the enquiry officer. But, the Labour Court, after re-appreciation of the said evidence, has recorded a finding that there was no valid evidence to prove the charge of assault on the complainant. The statements of the Driver and the Conductor recorded in the domestic enquiry, under Exs.M-13 and M-14 indicate that they are not eyewitness to the assault and only on hearsay, they have spoken about the assault on the complainant. The enquiry officer, in his report, under Ex.M-16, has also recorded a finding that in spite of issuing three notices, the complainant did not attend the enquiry and as such he has proceeded with ex parte enquiry. When disciplinary proceedings were initiated mainly basing on the complaint of Sri Hariprasad, the complainant, and the charge is with reference to the alleged assault on the complainant, such person is a key witness to prove the charge leveled against the employee. In this regard, the judgment relied on by the learned counsel for the first respondent in the case of Hardwarilal (5 supra) supports the case of the first respondent-employee. In paragraph-3 of the said judgment, it is held as under: “Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagadish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non- examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.” 9. In view of the ratio referred above and having regard to the nature of charges framed in the instant case against the first respondent, I am also of the opinion that prejudice was caused to the first respondent by not giving an opportunity to him to cross- examine Sri Hariprasad, the complainant, though there is a direct allegation of assault on the said person by the first respondent. It is to be seen that, as a fact it was found that except the statement of the Depot Manager, there was no other evidence to substantiate the said charge of assault. In view of the findings recorded by the Labour Court, it cannot be said that there were no valid grounds to interfere with the findings recorded by the enquiry officer. Though the learned counsel for the petitioner-Corporation has relied on the judgment in the case of Usha Breco Mazdoor Sangh (1 supra), but in view of the reasons recorded in the case on hand by the Labour court, the said judgment would not render any assistance to the case of the petitioner-Corporation. 10. There is yet another issue to be examined by this court, i.e. with regard to the entitlement of the first respondent to full backwages. In the case of U.P. State Brassware Corpn. Ltd. (3 supra), the Hon’ble Supreme Court, while examining grant of full backwages held that no precise formula can be laid down as to under what circumstances payment of entire backwages should be allowed and indisputably it depends upon the facts and circumstances of each case. Even in the case of J.K. Synthetics Ltd. (2 supra), the same view is shared by the Hon’ble Supreme Court and it is held that each case has to be examined on its own merits. So far as the issue with regard to backwages is concerned, in the judgment in the case of Hardwarilal (5 supra), relied upon by the learned counsel for the first respondent, considering the long lapse of time between dismissal and reinstatement, 50% backwages were awarded. Similarly, in the case on hand, it is to be noted that the first respondent was removed from service after conducting enquiry by order dated 30-11-1996 and ultimately by award of the Labour Court dated 06-04-2000, he was reinstated into service. It is submitted by the learned counsel for the petitioner- Corporation that after the Award was notified, the first respondent was reinstated into service and in view of the interim orders passed by this court, 50% backwages were already paid to him. In the case on hand, the first respondent was out of service for more than 3 years and though he challenged the order of removal from service by filing an appeal, the same was also dismissed. Thereafter, he raised an industrial dispute under Section 2-A (2) of the Industrial Disputes Act, 1947. The Labour Court has ordered his reinstatement into service by award dated 06-04-2000. Though the charges leveled against the first respondent are not proved, but, however, it cannot be said that such charges were framed only to victimize him. Taking into account the totality of circumstances, viz., the nature of charges framed, the length of time during which the first respondent was out of service and in the interest of justice, I deem it appropriate to modify the award with regard to backwages and hold that the first respondent is entitled to 50% backwages instead of full backwages. 11. In the aforesaid circumstances, the writ petition is allowed modifying the quantum of backwages from full backwages to that of 50% only. There shall be no order as to costs. ______________________________ JUSTICE R. SUBHASH REDDY. November 20, 2008 MRR [1] 2008 (5) SCJ 439 [2] (2007) 2 SCC 433 [3] (2006) 1 SCC 479 [4] AIR 1984 SC 505 [5] 2000 LAB. I.C. 21