THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.23260 OF 2000 DATED 8TH SEPTEMBER, 2010 BETWEEN APSRTC Rep. by its Depot Manager, Rajendranagar Depot, Hyderabad. … Petitioner And Sri R.Ashok … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.23260 OF 2000 ORDER: The Andhra Pradesh State Road Transport Corporation (APSRTC) through its Depot Manager, Ranjendranagar Depot, Hyderabad, assails the Award dated 28.06.2000 in I.D.No.115 of 1999 on the file of the Industrial Tribunal-II, Hyderabad (formerly, I.D.No.121 of 1996 on the file of the Labour Court-III, Hyderabad). By the said Award, the Industrial Tribunal directed the reinstatement of the respondent in service as a Conductor with 50% back wages and continuity of service. The respondent Conductor was subjected to disciplinary proceedings consequent to the check made on 26.04.1993 while he was conducting the bus service on route No.292. Out of the three charges framed against him, the second charge, pertaining to the alleged failure on his part in issuing tickets to two passengers despite collecting the ticket fare, was a serious one. Thereafter, the APSRTC removed the petitioner from service under order dated 12.07.1993. His appeal and review against the said removal met with failure on 31.10.1993 and 11.03.1994 respectively. He approached the Labour Court under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) only in the year 1996 by way of I.D.No.121 of 1996. The matter was thereafter transferred from the Labour Court-III, Hyderabad where it was instituted to the Industrial Tribunal-II, Hyderabad, which took it on file as I.D.No.115 of 1999. After considering the material on record, the Industrial Tribunal came to the conclusion that the APSRTC failed to establish on facts that the respondent had committed the irregularities alleged against him. Opining so, the Industrial Tribunal held that the APSRTC did not prove the said charges and directed reinstatement of the respondent in service as a Conductor. To this extent, the Award under challenge brooks no interference. Though Sri K.Madhava Reddy, learned standing counsel for the APSRTC, strenuously contended that the Industrial Tribunal erred in considering the evidence placed before it in the proper perspective, I am not inclined to agree. The Labour Court dealt with these aspects at length and found on due consideration of the material placed before it that the APSRTC failed to establish its case against the respondent. This Court would therefore not sit in appeal over the well-considered opinion of the Industrial Tribunal. However, in so far as the direction for payment of back wages is concerned, it is to be noted that there are no reasons forthcoming from the Award under challenge as to what prevailed over the Industrial Tribunal while granting 50% of the back wages. Sri V.Narasimha Goud, learned counsel for the petitioner, placed reliance on J.K. SYNTHETICS LTD. v . K.P.AGRAWAL AND ANOTHER[1] and contended that as per the observations of the Supreme Court therein his client would be entitled to full back wages and as the Industrial Tribunal had granted only 50% thereof, no case was made out for interference by this Court. He placed reliance on para 20 of the said Judgment which reads 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 victimize him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.” It is to be noticed that para 20 deals with the two exceptions to the legal position that back wages and continuity of service do not follow as a natural or necessary consequence of a direction for reinstatement in service. It is only in cases where an employee is exonerated or found not guilty of misconduct that the first exception would apply. In the present case, the Award under challenge clearly demonstrates that the Industrial Tribunal held in favour of the respondent only on the ground that the APSRTC failed to establish its case against him. This cannot be equated to the respondent being exonerated or found not guilty on facts. The implication of these two terms would mean that on merits the employee should either be ‘exonerated’ or should be found ‘innocent’ of the misconduct alleged against him. The failure on the part of the employer to establish its case would not amount to giving a clean chit to the employee on merits. The observations of the Supreme Court in J.K. SYNTHETICS LTD. in para 20 are therefore not applicable to the respondent. That being so, the Industrial Tribunal ought to have applied its judicial mind as to the respondent’s entitlement to back wages. Various factors as pointed out by the Supreme Court ought to have been considered by the Industrial Tribunal while deciding such entitlement. However, no exercise in this regard is apparent in the Award under challenge. The delay on the part of the respondent in approaching the Labour Court after rejection of his review would also have to be held against him. In such circumstances, the direction of the Industrial Tribunal to pay 50% of the back wages to the respondent is unsustainable on facts and in law and is accordingly set aside. The Award under challenge shall stand confirmed in all other respects. The Writ Petition is accordingly allowed in part but in the circumstances, without any order as to costs. ____________________ SANJAY KUMAR, J. 8TH SEPTEMBER, 2010 VGSR/PGS [1] (2007) 2 SCC 433