HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.G. SHANKAR WRIT APPEAL NO. 829 OF 2005 Between: The Depot Manager, APSRTC, Hayatnagar Depot, R.R. District. ………….Appellant AND K. Kistaiah, S/o Swamy, Conductor ………….Respondent JUDGMENT : (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Appeal has been filed against the order- dated 17.09.2004 passed by the learned Single Judge of this Court in W.P.No. 16675 of 2004. Writ Petition No. 16675 of 2004 was filed by the respondent herein challenging the action of the appellant-APSRTC herein as illegal and arbitrary and consequently direct the appellant-APSRTC to effect fixation of pay and add notional increments since 2001 and pay the arrears forthwith. That Writ Petition was disposed of at the stage of admission with a direction to the respondent therein to fix the pay of the petitioner by adding the notional increments for the period from the date of termination of the service till the date of reinstatement, within a period of two months from the date of receipt of a copy of that order. Aggrieved by the same, the present Writ Appeal is filed. Brief facts of the case are that the respondent herein is working as a Conductor in the appellant- Corporation and he was removed from service on certain cash and ticket irregularities in the year 1994. Therefore, he raised an industrial dispute vide I.D.No. 239 of 1995 on the file of Labour Court, III, Hyderabad, which was later transferred to Industrial Tribunal –II, Hyderabad and renumbered as I.D.No. 80 of 1999. The Industrial Tribunal passed an award on 10.5.2000 directing reinstatement of the respondent with continuity of service and without back wages. After that, the Divisional Manager, APSRTC, Sanathnagar Division, Hyderabad and the Divisional Manager issued orders dated 13.6.2000 reinstating the respondent and accordingly the respondent reinstated and reported to duty on 6.6.2000. The main grievance of the respondent counsel is that he is drawing less pay than his colleagues and he issued a legal notice on 30.8.2004 requesting the appellant-Corporation to fix his pay and add the notional increments to the pay from 2000 but the appellant-Corporation did not fix the pay after adding the notional increments. Aggrieved by the same, the respondent approached this Court by way of filing Writ Petition. The learned counsel appearing for the appellant- Corporation submits that the learned Judge ought not to have granted notional increments inasmuch there is no challenge with regard to the same and the respondent is not entitled the same from the date of removal till the date of reinstatement. He relied on the judgment of the Supreme Court reported in A.P. STATE ROAD TRANSPORT CORPORATION AND OTHERS VS. ABDUL KAREEM[1], wherein the Supreme Court relying on the judgment of the Supreme Court reported in APSRTC VS. S. NARSAGOUD[2] observed as under: “9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service. ” On the other hand, the learned counsel appearing for the respondent drawn our attention to the judgment of the Supreme Court reported in J.K. SYNTHETICS LIMITED VS. K.P. AGRAWAL AND ANOTHER[3], wherein the Supreme Court held that in cases where the miscount 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. The Supreme Court further at paragraph 20 observed as under: “20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, he principles relating to back wages, etc, will be the same as those applied in the cases of an illegal termination.” Heard the learned counsel appearing for both sides and also perused the entire material made available on record. As seen from the record, it is no doubt true that the respondent was removed from service on certain cash and ticket irregularities in the year 1994 and therefore he raised an industrial dispute before the Industrial Tribunal and the Industrial Tribunal passed an award on 10.05.2000 directing reinstatement of the respondent with continuity of service and without back wages. As the appellant did not fix the pay after adding the notional increments the respondent approached this Court and the learned Single Judge of this Court directed the appellant-Corporation to fix the pay of the respondent by adding the notional increments for the period from the date of termination of the service till the date of reinstatement. Therefore, following the judgment of the Supreme Court reported in A.P. STATE ROAD TRANSPORT CORPORATION AND OTHERS VS. ABDUL KAREEM (supra-1), the order passed by the learned Single Judge is liable to be set aside. Accordingly, the Writ Appeal filed by the Corporation is allowed and the order dated 17.9.2004 passed by the learned Single Judge of this Court is set aside. There shall be no order as to costs. __________________________ GHULAM MOHAMMED, J ____________________ K. G.SHANKAR, J DATE: 06.06.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] (2005) 6 SUPREME COURT CASES 36 [2] (2003) 2 SCC 212 [3] (2007) 2 SCC 433