HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.25903 of 2001 16th December, 2010 BETWEEN: M.N. Naidu … PETITIONER(S) And The A.P.S.R.T.C., Rep. by its Managing Director, Hyderabad and another. … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.25903 of 2001 ORDER: The point that arises for determination in this writ petition is whether the proceedings No.P2/785(1)/99-TML, dated 07.10.1999 of the Depot Manager, Tirumala refusing wages to the petitioner for the period from 8.1.1987 to 10.8.1988 are illegal and whether this Court should direct the respondents to pay the wages for the said period with increments and all other consequential benefits. 2. The petitioner on the date of this writ petition which is of the year 2001 was a conductor in Andhra Pradesh State Road Transport Corporation (APSRTC) first respondent herein. The second respondent is the Depot Manager of APSRTC of Tirumala Depot, Chittoor District. The age of the petitioner was given as 52 years in the writ petition and we are now in December 2010 and more than 8 years have elapsed. It is not known whether petitioner has retired from service or is in any other job in APSRTC, but this does not make any difference to his claim on merits. 3. The point arises in the following circumstances. Originally the petitioner was an employee of the transport undertaking of the Tirumala Tirupati Devasthanams (TTD). The said transport undertaking of the TTD was taken over by the APSRTC with effect from 10.8.1975 subject to the protection of service conditions of the employees of the transport undertaking of TTD under Section 25 (FF) of the Industrial Disputes Act. The other details are not necessary. There was an industrial dispute raised regarding the protection of service conditions of the employees of the transport undertaking of TTD after its merger with the APSRTC and that industrial dispute bearing I.D.No.43 of 1986 was pending in the Industrial Tribunal, Andhra Pradesh at Hyderabad. One of the points of dispute was about the right of the APSRTC management to transfer the employees of the erstwhile transport undertaking of TTD to other places in our State from Tirumala or Tirupati while the contention of the said employees was that they should be retained only at Tirumala or Tirupati and this dispute was pending before the Industrial Tribunal in the above I.D. No.43 of 1986. There is no dispute about the above facts. 4. In the meanwhile the petitioner was placed under suspension in connection with his alleged misconduct relating to some ticket irregularities, but as charges levelled against him were not proved, the Divisional Manager, APSRTC, Tirupati by his order dated P2/633(1)/87-DVM(T), dated 8.1.1987 revoked the suspension and by the same order he transferred the petitioner and posted him to Srikalahasti Depot. Questioning the said transfer order the petitioner filed M.P.No.17/1987 in the above mentioned I.D.No.43 of 1986 on the ground that since the above industrial dispute was pending relating to service conditions of the employees of TTD including their transfer to places other than Tirumala and Tirupati the order by which he was transferred was illegal and was an unfair labour practice which was prohibited under Section 33 of the Industrial Disputes Act, 1947 (for short ‘Act’). These details are mentioned in the order dated 09th April 1987 of the Industrial Tribunal passed in M.P.No.17/1987 filed by the petitioner and there is no dispute about the same. 5. Subsequently after a contest the Industrial Tribunal by its above mentioned order dated 09.4.1987 allowed the said M.P.No.17 of 1987 upholding the contention of the petitioner and set aside the order dated 08.01.1987 of the Divisional Manager, APSRTC, Tirupati transferring the petitioner to Srikalahasti. The order of the Industrial Tribunal in the said M.P. No.17/1987 is however silent about the payment of wages to the petitioner from the date of his transfer order to the date of the order in M.P.No.17/1987 and even subsequently. It must be mentioned here that what transpired in I.D.No.43 of 1986 and how it was decided is however is not made clear by both parties. The APSRTC filed a writ petition i.e., W.P. No.18871 of 1987 questioning the above order of the Tribunal passed in M.P. No.17/1987 and also a writ appeal i.e., W.A. No.932 of 1988 in this Court, but was unsuccessful. There is no dispute about the above aspects. 6. Thereafter the petitioner reported for duty on 11.8.1988 at Srikalahasti and this is not in dispute. It is stated in the counter filed by the Law Officer of the APSRTC, Hyderabad on behalf of the respondent that earlier the petitioner filed W.P. No.17416 of 1999 seeking a direction to the respondents regarding payment of wages for the period from 08.01.1987 to 11.8.1988 and the said writ petition was disposed of on 18.8.1989 directing the respondents to dispose of the representation dated 17.8.1988 of the petitioner for payment of wages and that representation was disposed of by the second respondent by passing the present impugned order. In the counter it is stated that petitioner also filed a contempt case i.e. C.C.No.1309 of 2000 for violating the order in W.P.No.17416 of 1999 but the said contempt case was dismissed on the ground that APSRTC’s authorities complied with the direction of this Court and disposed of the representation and therefore the question of any contempt did not arise. Again the petitioner has come up with this writ petition questioning the impugned order and for a direction to the respondents to pay him the wages for the period mentioned in the point. 7. The main contention of the writ petitioner is that since the Tribunal has set aside the order dated 08.01.1987 transferring him to Srikalahasti in M.P.No.17/1987 he must be deemed to be on duty at Tirupati from 08.1.1987 onwards till 10.8.1988 and therefore he is entitled to wages for that period from the respondents. His further contention is that in law the Tribunal while allowing his M.P.No.17/1987 ought to have granted back wages or wages for the said period or directed payment of wages and though it failed to do so the respondents are bound to pay him the said wages for the above period as his transfer order has been set aside as illegal. On the other hand, the contention of the respondents is that since the petitioner did not work from 08.01.1987 to 10.8.1988 and did not report for duty either at Srikalahasti or at Tirumala he is not entitled to wages for that period on the principle of “no work no pay” and that as nothing prevented him from joining duty at either of the above places during the above period the impugned order is justified in and valid in law. The impugned order reads that the petitioner reported for duty at Srikalahasti from 11.8.1988 and he was paid his wages for that period and he was again transferred on his request to Tirumala Depot by the second respondent by his order dated 31.5.1990. 8. The learned counsel for the petitioner basing on the above pleadings of the petitioner reiterated in the course of arguments that by reason of the Tribunal’s order in M.P.No.11/1987 setting aside the transfer order the petitioner is entitled to wages for the above period and the impugned order is bad and must be set aside and the respondent should be directed to pay him wages for the said period. The learned counsel for the respondents reiterated the stand of the respondents which is already mentioned supra. Both sides relied upon certain case law also which will be referred to infra. The point is now taken up in the light of the above contentions and the circumstances which led to the passing of the impugned order. 9. It is true that the Tribunal in M.P.No.17/1987 in I.D.No.43/1986 has by its order dated 09.4.1987 has set aside the transfer order dated 08.01.1987 transferring the petitioner to Srikalahasti but the Tribunal’s order is silent regarding payment of wages. The petitioner however did not file any record to show that he reported for duty at Srikalahasti pursuant to the transfer order or reported for duty at Tirumala after the transfer order was set aside asking the APSRTC authorities concerned to give him a posting at Tirumala i.e. the place where he was working prior to the transfer. Even if the Tribunal had by way of interim order granted suspension of transfer order, the petitioner ought to have reported for duty at Tirumala i.e. his previous station but that did not happen. Instead the impugned order dated 07.10.1999 of the second respondent shows that the petitioner reported for duty at Srikalahasti on 11.8.1988 after the transfer order was suspended. It is not known why he reported for duty at Srikalahasti on 11.8.1988 when his plea was that his transfer is illegal. Presumably the petitioner’s reporting for duty at Srikalahasti on 11.8.1988 may be because of the decision in I.D.No.43 of 1986 which may have gone in favour of APSRTC regarding service conditions relating to transfers. However, this is not on record and neither side brought to the notice of this Court about the result of I.D.No.43 of 1986 but this has no significance. 10. The language of Section 33 of the Act does not permit a conclusion that in the case of mere transfer of an employee from one place to another mere pendency of an industrial dispute relating to transfers also enables an employee to abstain from work either at the place of his original posting or the place to which he is transferred and then subsequently claim wages for the relevant period. Nothing is brought to my notice by the learned counsel for the petitioner to uphold his contention on this aspect. The petitioner did not file any document to show that he reported for duty at Srikalahasti pursuant to the transfer order or at Tirumala soon after the filing of M.P.No.11/1987 or after its disposal and the respondents refused to take work from him and instead he kept quiet and ultimately reported for duty at Srikalahasti on 11.8.1988 as stated in the impugned order of the second respondent which is not disputed. Thus the reason given in the impugned order by the second respondent that petitioner was refused wages from 01.7.1987 to 10.8.1988 on the ground that he did not work or report for work has to be accepted as a valid reason. In my opinion this circumstance is enough to uphold the impugned order as contended by the respondents counsel. 11. The learned counsel for the petitioner relied upon decisions of our Hon’ble Supreme Court given in HINDUSTAN TIN WORKS vs. EMPLOYEES[1] and another decision of our High Court given in B. RAMULU vs. PRESIDING OFFICER, LABOUR COURT-II, HYDERABAD[2] in support of his contentions. In the first case decided by our Hon’ble Supreme Court the principle laid down is that where the illegal termination from service of a workman is set aside, the normal rule is that back wages should be granted unless there is a justifiable reason for refusing them. The same principle is again reiterated in our High Court decision second referred to above. The above two decisions relate to cases where illegal terminations of workmen were set aside and the said principle cannot be applied here which relates to a case of mere transfer and the said decisions are distinguishable from the facts of this case and cannot advance the case of the petitioner. 12. The learned counsel for the respondents also relied upon two decisions of our Hon’ble Supreme Court one reported in J.K. SYNTHETICS LTD. vs. K.P. AGRAWAL[3] and the other given in KANPUR ELECTRICITY SUPPLY COMPANY LIMITED vs. SHAMIM MIRZA[4]. These two cases laid down the principle that in cases not relating to illegal termination of service the grant of back wages does not automatically follow and it depends upon various factors. These two cases also do not cover a situation like this. It may be noted that the Tribunal while allowing M.P.No.17/1987 did not speak of back wages except holding that the transfer order is illegal. This is consistent with the position that till the transfer order is set aside the petitioner must work at the place to which he is transferred and after the setting aside the transfer order he must report for work at his original place or station. In my view the payment of wages in a case like this can be ordered only subject to the above conditions of the workman reporting for work and doing the work at both places as indicated above and not otherwise. 13. Accordingly for the aforesaid reasons the point is decided against the petitioner and this writ petition is dismissed. No costs. ______________________ N. RAVI SHANKAR, J 16th December, 2010. BSB/CVRK [1] (1979) 2 SCC 80 [2] 2008 LAB. I. C. 155 [3] (2007) 2 SCC 433 [4] (2009) 1 SCC 20