THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.1812 OF 2002 Date: 05.08.2011 Between: The Depot Manager, A.P.S.R.T.C., Podili Bus Depot, Prakasam District. …..Petitioner And The Industrial Tribunal-II, Hyderabad, Rep. by its Presiding Officer and others …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.1812 OF 2002 ORDER: This writ petition is filed seeking a writ of Certiorari to set aside the award dated 23-12-2000 passed in I.D.No.141 of 1998 by the Labour Court, Guntur directing reinstatement of the 1st respondent into service with all back wages and all other benefits. Petitioner herein is the Manager of Podili Bus Depot of Andhra Pradesh State Road Transport Corporation (APSRTC). 2. Heard the learned Standing Counsel for petitioner. It is seen that the 1st respondent is served, but he chose to remain absent and there is no representation for him. 3. At the relevant time, the 1st respondent was working as a driver in the service of the petitioner-Corporation. A disciplinary enquiry was commenced against the 1st respondent on a charge of unauthorised absence. The period of unauthorised absence is mentioned as 26-5- 1996 to 11-6-1996. After receiving explanation of the 1st respondent and after conducting an enquiry, the disciplinary authority by its order dated 27-2-1998, removed him from service. That order of removal was confirmed by the appellate authority and also the revisional authority. Thereafter the 1st respondent raised an industrial dispute i.e. I.D.No.141 of 1998 before the labour Court, Guntur. The labour Court after considering the matter passed the impugned award setting aside the order removing the 1st respondent from service and directing his reinstatement with all back wages and other benefits. 4. A perusal of the impugned award would show that the 1st respondent submitted a medical certificate from the Government Hospital, Podili, showing that he was suffering from an illness i.e. bronchitis and therefore, could not attend to duties from 26-5-1996 to 11- 6-1996. It is seen, as observed by the labour Court, the management did not refer the 1st respondent to any medical board or any other superior medical officer, even though the bonafides of the 1st respondent in producing the above medical certificate is doubted by it. The order of the disciplinary authority would however show that it took into account certain circumstances which showed that the 1st respondent was also absent from 1-11-1996 to 14-2-1998 without any authorisation and in that view of the matter it held the charge as proved and passed the removal order. In the said removal order, the disciplinary authority also observed that the 1st respondent was not interested in his job and it was due to that reason he was frequently absenting from work. 5. The labour Court however found that since the 1st respondent has produced the medical certificate and as the management did not refer him to any medical board or any superior medical officer to find out whether the plea of ill-health taken by him is true or not, but simply rejected his medical certificate and that was bad on its part. It also held that the disciplinary authority was not within its jurisdiction to take the period of absence from 1-11-1996 to 14-2-1998 as no charge was framed to that effect and the charge framed was different. In that view of the matter, it set aside the removal order on the basis of the medical certificate produced by the 1st respondent holding that his absence could not be treated as unauthorised one. 6. The learned Standing Counsel for the petitioner argued at length reiterating the plea of the management that the 1st respondent was not at all regular in duties and therefore, the removal order is justified. He also pointed out that the labour Court was not justified in ordering payment of back wages as he was absent for about two years i.e. from the date of removal order to the date of labour Court award. There is however no force in this contention. 7. It may be noted that the labour Court found that since the 1st respondent has produced the medical certificate for the period of absence mentioned in the charge and as that was not disputed by the management as false, the management was not justified in terminating his services. So far as this finding of the labour Court is concerned, there is no reason to interfere with it. 8. Turning to payment of back wages, it should be noted that the order of the disciplinary authority would show that the petitioner was absent not only for the period from 26-5-1996 to 11-6-1996, but he was also absent from 1-11-1996 to 14-2-1998. Of course this subsequent period of absence was not included in the charge and it is seen that no separate charge was also framed. It may however be noted that if an employee is absent, he can be granted the leave to which he is eligible and if ultimately he has to be granted only leave on loss of pay it follows that he cannot be paid back wages or wages for that period straight away. In this view of the matter, I am of the opinion that the order of the labour Court granting back wages for the entire period of absence cannot be sustained. Hence, the order of the labour Court relating to back wages is set aside and the management of APSRTC authority is now directed to consider whether for the period of absence, the 1st respondent is entitled to any leave on pay and if he is entitled to leave on pay, only then he will get wages for that period. 9. So far as the 1st respondent’s absence from duties from 1-11-1996 to 14-2-1998 is concerned, the management of APSRTC having regard to the principle of “no work no pay” decide about the truthfulness or otherwise of the said allegation and decide about his pay and allowances for that period after giving an opportunity to the 1st respondent. This order shall not be understood to preclude the APSRTC from initiating disciplinary action against the 1st respondent for the above alleged absence if that is permissible under the regulations. Accordingly the award of the labour Court is modified to the extent indicated above regarding back wages. 10. With the above directions, this writ petition is disposed of. No costs. ___________________________ JUSTICE N.RAVI SHANKAR 5th August, 2011 Tjmr THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.1812 OF 2002 DATE: 05.08.2011