*THE HONOURABLE Ms. JUSTICE G.ROHINI +WRIT PETITION Nos. 5796 & 5867 of 2009 %04-11-2009 #1. G. Venkateswarlu, 2. V. Venkat Reddy and others. ….petitioners Vs. $ The regional Manger, APSRTC, Mahaboobnagar Region, At Mahaboobnagar and another …. Respondents !Counsel for the Appellants: Sri P. Venkateswer Rao Counsel for the Respondents: Mr. C.Sunil Kumar Reddy, Standing Counsel for APSRTC., for respondents 1 & 2. <Gist : >Head Note: ? Cases referred: 1. 1999 (4) ALT 515 2. 2003 (1) SCC L & S 161 = 2003 (2) SCC 212. IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION Nos. 5796 & 5867 of 2009 Between: 1. G.Venkateswarlu, ASRTC, Gadwal Bus Deport, Mahaboobnagar District., A.P. 2. V.Venkat Reddy and others. ..... PETITIONERS AND The Regional Manger, APSRTC., Mahaboobnagar Region at Mahaboobnagar District and another. ...RESPONDENTS THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.5796 & 5867 of 2009 COMMON ORDER: These two writ petitions are filed with a common prayer seeking direction for payment of Stagnation Increment. Hence they are heard together and decided by this common order. The facts, in brief, are as under:- The petitioners in both the writ petitions are the employees of the Andhra Pradesh State Road Transport Corporation. Their services were terminated on different dates and challenging the same, they approached the Labour Court by raising Industrial Disputes. The said Industrial Disputes were allowed and by separate awards, reinstatement with continuity of service was ordered. Pursuant thereto, the petitioners were taken into service. However they were not granted the stagnation increment to which they are entitled to as per Circular dated 3/6/1989 after completion of 12 years of service. It is alleged that the Corporation refused to take into consideration the period during which the petitioners were out of service i.e., from the date of termination till the date of award of the Labour Court while computing the 12 years service and thus rejected their claim for stagnation increment. Aggrieved by the said action of the respondents, the present Writ Petitions are filed. The learned counsel for the petitioners while pointing out that the Labour Court ordered reinstatement of the petitioners with continuity of service and that the said awards have become final, vehemently contended that the action of the Corporation in not considering the period during which they were out of service and on that ground disallowing their claim for stagnation increment though they have completed 12 years of service, is arbitrary and illegal. It is also brought to the notice of this Court that though the Corporation subsequently vide memo dated 11.7.1990 clarified that for the purpose of the implementation of Special Grade allowed under the Circular dated 3.6.1989 only active service rendered by the employees, by deducting LWP/Absenteeism shall be taken into account while computing 12 years service, the validity of the said Circular dated 11.7.1990 was considered by this Court in MD.Rahamatullah vs. Depot Manager, APSRTC., Godavarikhani Depot[1] and it was held that whenever a Labour Court directs reinstatement with continuity of service but without back wages, the employee concerned will be entitled for all the benefits flowing from continuity of service and that the only restriction is upon payment of back wages which is imposed by the Labour Court Award itself. It was further held that the employees who were reinstated into service as per the award of the Labour Court will not have to be distinguished from other employees who have rendered normal service and an employee who is succeeded before the Labour Court and who has been directed to be reinstated with continuity of service has to be treated on par with all other employees. Otherwise, a stigma will be attached to the employees who are reinstated by virtue of the Award of the Labour Court. Accordingly, the Circular dated 11.7.1990 was declared as discriminatory and was struck down being violative of the Articles 14 and 16 of the Constitution. Having regard to the aforesaid decision, the learned counsel for the petitioners contended that the respondents are bound to take into consideration the out of employment period in all the matters where the Labour Court ordered reinstatement with continuity of service. However, the learned Standing Counsel for the Corporation while relying upon a decision of the Supreme Court in Andhra Pradesh State Road Transport Corporation, Hyderabad vs. S.Narsagoud[2] contended that the petitioners can not be automatically entitled to stagnation increment unless the Labour Court so directed in the order of reinstatement. In the above decision, an identical question was raised before the Supreme Court with regard to the implementation of the award passed by the Labour Court directing reinstatement with continuity of service. It was contended on behalf of the Corporation that when an employee remained unauthorisedly absent from duty, the direction by the Labour Court for reinstatement with continuity of service would not automatically entitle him to receive the benefit of increments unless and until, there was a direction by the Labour Court for release of consequential benefits. It was also contended that the benefits of increments, which the employee might have earned during the period of unauthorized absence cannot be allowed to the employee merely on the basis of the reinstatement ordered by the Labour Court with continuity of service in view of Regulation 13 of the Andhra Pradesh State Road Transport Corporation Employees (Pay and Allowances) Regulations 1964 (for short Regulations, 1964). Having upheld the contentions of the Corporation, it was held by the Supreme Court as under:- “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 unauthorized absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorized 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. The Regulations referred to hereinabove clearly spell out the period spent on the extraordinary leave or leave without pay or a period of overstayal after the expiry of leave or joining time cannot count towards increments unless the order of the competent authority sanctioning the extraordinary leave or leave without pay or the order commuting the period of overstayal into extraordinary leave or leave without pay is accompanied by a specific order to count the period for increments. A period of unauthorized absence from duty treated as misconduct and held liable to be punished by way of penalty cannot be placed on a footing better than the period of extraordinary leave or leave without pay or a period of overstayal. Ordinarily, the increments are earned on account of the period actually spent on duty or during the period spent on leave, the entitlement to which has been earned on account of the period actually spent on duty. The direction of the High Court entitling the respondent to earn increments during the period of unauthorized absence from duty though held liable to be punished in departmental inquiry proceedings would amount to putting a premium on the misconduct of the employee.” In the light of the ratio laid down by the Supreme Court in the above decision, it is clear that the employees cannot be entitled for the increments notionally earned during the period of unauthorized absence, if they are found to be guilty of unauthorized absence. In the circumstances, the Corporation has to consider the claim of the petitioners for stagnation increment in terms of the Circular dated 3.6.1989 taking into consideration the finding it any recorded in the awards passed by the Labour Court with regard to their absence. In case, such absence was held to be unauthorized absence, as held by the Supreme Court in S. Narsa Goud’s Case (2 Supra), they are not entitled for stagnation increment. If there is no such finding, they shall be granted the increment as allowed in Circular dated 3.6.1989. Accordingly, both the writ petitions are disposed of with a direction to the Corporation to consider the claims of the petitioners independently in the light of the ratio laid down by the Supreme Court in S. Narsa Goud’s Case (2 Supra) and pass appropriate orders in accordance with law as expeditiously as possible, preferably within a period of eights weeks from the date of receipt of this order. No costs. _______________ Justice G.Rohini Date:4.11.2009 LR Copy to be marked. B/O mrb [1] 1999 (4) ALT 515 [2] 2003 (1) SCC L&S 161 = 2003 (2) SCC 212