IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE TWENTYFIFTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE B.N. RAO NALLA WRIT PETITION No. 19960 OF 2001. Between: P.D.V. Kumar @ J.M. Vinod Rao … Petitioner V/s. The Depot Manager, APSRTC Medak Depot Medak district & Anr. … Respondents Counsel for the petitioner : Sri J. M. Naidu Counsel for the Respondent : Standing Counsel for APSRTC The Court made the following : Order (order follows 2nd page) THE HONOURABLE SRI JUSTICE B.N. RAO NALLA WRIT PETITION No. 19960 OF 2001. O R D E R : This writ petition has been filed seeking mandamus to declare the action of the second respondent in denying the backwages to the petitioner by passing the Award in I.D.No. 48 of 1997, dated 21-4-2000 on the file of the Labour Court-II, Hyderabad, as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and consequently to direct the first respondent to pay the back wages to the petitioner from the date of reinstatement into service with all other consequential benefits including bonus, leave salary etc., forthwith and to pass such other suitable orders as this Court may deems fit and proper in the circumstances of the case. 2. The petitioner was removed from service by Respondent No.1 Depot Manager, APSRTC Medak, by his order dated 11-01- 1994 in Proceedings No. P2/114 (1)/93-MDK on the ground that he secured employment with manipulated transfer certificate as driver of Manchriyal Depot of APSRTC, dated 29-04-1980 and subsequently he was transferred to Medak Depot in 1981. That on 17-11-1993 he was charge sheeted for having secured appointment as driver on the basis of manipulated transfer certificate as has already been stated hereinabove. He challenged the order of his removal before the second respondent, Labour Court-II, Hyderabad in I.D.N. 48 of 1997. The Labour Court-II, Hyderabad by its order dated 21-04-2000 held that the finding of the Enquiry Officer was perverse and Respondent No.1 was not justified in removing the petitioner from service; and as such, the petitioner is entitled to reinstatement and accordingly, the impugned order was set aside and Respondent No.1 was directed to reinstate the petitioner into service with continuity of service and other attendant benefits but without back wages. 3. The petitioner preferred this writ petition, so far as his continuity of backwages is concerned stating that during the course of Departmental Enquiry, the school authorities were not examined and that the Security Officer who was directed to visit the school and verify the school records of the petitioner was also not examined. Since as per the school records, the petitioner’s name was mentioned as J.M. Vinod Rao, whereas he was given appointment as driver on the basis of driving licence wherein his name was shown as P.D.V. Kumar. Thus, he was erroneously charge sheeted on 17-11- 1993 and was erroneously removed from service by the impugned order dated 11-1-1994. 4. The leaned counsel for the petitioner relied on a decision reported in G.T. LAD AND OTHERS V/s. CHEMICALS AND FIBRES INDIA LIMITED reported in AIR 1979 SC-582, wherein it was held to the effect, in para No.8, that when reinstatement has been directed by the Court, the entire back wages must follow as a matter of course. There is a discretion in the Court having regard to special circumstances, if any, to modify this normal rule. The learned counsel for the petitioner also relied another decision reported in M/s. HINDUSTAN TIN WORKS PVT. LTD. V/s. EMPLOYEES OF M/s. HINDUSTAN TIN WORKS PVT. LTD.& ORS., reported in AIR 1979- SC-75, wherein it was held to the effect, in para No.9, that ordinarily a workman whose services has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to follow back wages except to the extent he was gainfully employed during the enforced idleness. 5. In view of the said decisions, the learned counsel contended that while disentitling the petitioner for back wages, the lower Court did not specify any special circumstances while exercising its discretion. Therefore, he contends that as per the normal rule the petitioner is entitled to claim back wages. Moreover, he further contends that the impugned order does not speak of the petitioner being gainfully employed during the enforced idleness. Therefore, he contends that the petitioner is entitled to claim back wages also along with all other benefits. It is clarified that since all other benefits were received by the petitioner, he has not claimed them except the back wages. It is not in dispute that the petitioner was retired from service in 2009 on attaining the age of superannuation. 6. Per contra, it is contended on behalf of the respondent- corporation that basing on a complaint dated 25-10-1993 an enquiry was ordered against the petitioner and the Security Sub-Inspector enquired into the school records of the petitioner and found that the petitioner had no two names and that he had only one name i.e., M. Vinod Rao. That he tampered therewith and claimed himself to be P.D.Vinod Kumar. He did so to have promotional benefit though no educational qualifications were required at that time to be appointed as RTC driver. Therefore, Respondent No.1 Depot Manager, Medak charge sheeted the petitioner and ordered enquiry. That during the course of enquiry, charges prima facie were proved and accordingly Respondent No.1 passed dismissal order dated 11-1-1994 removing the petitioner from service. That thereafter the petitioner preferred the appeal before the Divisional Manager, Medak Depot and on his appeal being rejected, he also preferred review before the Regional Manager and the same was also rejected. As such, it is contended on behalf of the respondent-corporation that the enquiry under section 11 of Industrial Disputes Act, 1947 held to be valid by the Labour Court and having regard to the facts and circumstances of the case, the Labour Court denied the back wages to the petitioner by exercising its discretion in that regard. So far as gainful employment of the petitioner is concerned, during removal period, it is for the petitioner to prove that he was not gainfully employed during the said period. However, he did not do so, therefore, the burden does not shift on the respondents to prove that he was gainfully employed during the period of removal. He lastly contended that the Labour Court by its impugned award rightly disentitled the petitioner to claim back wages. 7. In the facts and circumstances, it appears that the Labour Court-II, Hyderabad has considered the entire material on record while holding that Respondent No.1 was not justified in removing the petitioner from service and that he was entitled to reinstatement with continuity of service and other attendant benefits except back wages. However, it is manifestly clear from the impugned order that the Labour Court did not specify any special circumstances while exercising its discretion in denying the back wages to the petitioner. Therefore, this Court is of the view that as per the normal rule, the petitioner is entitled to claim back wages. Moreover, there is nothing on record to show that the petitioner was gainfully employed during the period enforced idleness or removal period. Neither party brought any material on record to that effect. So in these circumstances, this Court finds no reason to disagree with the contention raised on behalf of the petitioner and having regard to the decisions of the Apex Court referred to hereinabove. 8. In the facts and circumstances, the writ petition is allowed and Respondent No.1 is directed to pay the back wages forthwith to the petitioner from the date of reinstatement into service with all other consequential benefits. In the circumstances, there shall be no order as to costs. ________________________ JUSTICE B.N. RAO NALLA 02-12-2010 I s L THE HONOURABLE SRI JUSTICE B.N. RAO NALLA WRIT PETITION NO.19960 OF 2001 02-12-2010 I s L