IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 20426 of 1999 Between: M.Satyam Naidu, S/o. Jagannadhan Naidu, E.No:452827, Kotha Veedhi, Parvathipuram, Vizianagaram District. ..... PETITIONER AND 1 The Industrial Tribunal-cum-Labour Court, Visakhapatnam. 2 The Depot Manager, A.P.S.T.R.C., Parvathipuram, Vizianagaram District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to call for the records pertaining to the Award dt. 22-5-1998 in I.D.558/95 as published in G.O.Rt.No.1268, dated 23-7-1998 by issuing a Writ, Order or direction more particularly one in the Nature of Certiorari and set-aside the same so far as denying the back wages are concerned on consequetly direct the 2nd Respondent to pay, to the Petitioner all the Back Wages in the interest of Justice. Counsel for the Petitioner : MR.G.RAMA GOPAL Counsel for the Respondents : GP FOR LABOUR The Court made the following : HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No : 20426 of 1999 ORDER : This writ petition is ﬁled by the petitioner, who is working as a Driver in the Andhra Pradesh State Road Transport Corporation, questioning the Award dated 22nd May 1998, passed by the Industrial Tribunal-cum- Labour Court, Visakhapatnam in I.D.No.558 of 1995, to the extent of denying bacakwages. 2. The brief facts are that when the petitioner herein was driving the bus bearing No.AP-9Z-1235, a fatal accident had occurred on 24th November 1994, which resulted in the death of a girl aged about nine years. After conducting preliminary inquiry, disciplinary proceedings were initiated against the petitioner. In the disciplinary proceedings, following charge was framed against the petitioner : “For having driven the bus AP-9Z-1235 in a rash and negligent manner without observing the road users and lack of anticipation while proceeding from old bus stand, Parvathipuram towards Gorada at about 12.45 hrs. on 24.11.94 which resulted into a death of a girl aged 9 years who was proceeding on left side of the bus on the same direction due to run over of rear wheel of the bus which comes to misconduct under Reg.28(ix.a) and (xxxii) of APSRTC Employees’ (Conduct) Regulations, 1963.” 3. When the charge was denied by the petitioner, a regular inquiry was ordered by appointing an inquiry officer. The inquiry oﬃcer, in his report dated 18th April 1995, by discussing the oral evidence at length, has recorded a ﬁnding that the accident had occurred due to rash and negligent driving on the part of the petitioner. Based on such ﬁndings of the inquiry oﬃcer, an order of removal was passed. The petitioner has questioned such removal order by way of an application ﬁled under Section 2-A(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’), before the Industrial Tribunal-cum-Labour Court, Visakhapatnam. 4. Before the Labour Court, no additional evidence was let in on behalf of the workman, but however, on behalf of the management, documents in Exs.M-1 to M- 14 were marked. 5. The Tribunal, while re-appreciating the evidence on record, has recorded a ﬁnding that the petitioner cannot be made solely responsible for the accident, but however, observing that the accident had occurred due to lack of diligence and anticipation on the part of the petitioner-workman, has ordered for his reinstatement with continuity of service, but however, without backwages. 6. In this writ petition, it is argued by the learned counsel for petitioner that asmuch as the petitioner is not solely found guilty of the charge framed against him, the Tribunal ought to have awarded backwages also. It is submitted that there is no reason for not awarding backwages to him. 7. I have perused the record relating to the domestic inquiry proceedings. In this case, the accident had occurred when a girl, aged about nine years, who was proceeding on left side of the bus in the same direction, was run over by the bus bearing No.AP- 9Z-1235, being driven by the petitioner. In the disciplinary proceedings, oral evidence of several witnesses was recorded and it was found that there was lack of anticipation and diligence on the part of the petitioner-workman, which resulted in the fatal accident. Though certain beneﬁt is given by the Tribunal by recording a ﬁnding that the petitioner cannot solely be made responsible for the accident, but however, at the same time, the Tribunal has approved negligence on the part of the petitioner in driving the bus. In that view of the matter, the Tribunal, in exercise of its powers under Section 11-A of the Act, has set aside the punishment of removal and ordered for reinstatement of petitioner with continuity of service but without backwages. 8. From the proceedings on record, it is nowhere the case of the petitioner that he was not gainfully employed during the period in which he was out of service when the I.D. was pending consideration. Even in the aﬃdavit ﬁled in support of the writ petition also, there is no such averment. Further, except ﬁling the copy of the Award, the petitioner has failed to ﬁle before this Court, the application ﬁled by him before the Tribunal under Section 2-A(2) of the Act. It is well settled that unless there is a speciﬁc pleading to the eﬀect that he was not gainfully employed during the period in which he was out of service, the petitioner cannot claim backwages. In this regard, reference can be made to a judgment of Hon’ble Supreme Court in the case of J.K.Synthetics Ltd. V. K.P.Agarwal [1]. Even on merits also, asmuch as negligence on the part of the petitioner is proved and the inquiry oﬃcer has recorded a ﬁnding that the fatal accident had occurred only due to negligence on the part of the petitioner- workman, even by applying the principle of ‘no work – no pay’, the petitioner cannot be awarded backwages in this case. 9. For the aforesaid reasons, the writ petition is devoid of merit and it is accordingly dismissed. ______________________ R. SUBHASH REDDY, J 20th October 2008 ajr [1] (2007) 2 SCC 433