THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.26195 OF 2008 AND 17330 OF 2009 DATED NOVEMBER, 2010 WRIT PETITION NO.26195 OF 2008 BETWEEN The Depot Manager, APSRTC, Guntur-II Depot, Guntur, Guntur District. And Another. … Petitioner And Shaik Meera Saheb, S/o Khader Saheb, C/o Sk. Nazeer, Vallurupalem Post, Thotlavallur (M), Krishna District. And Another. … Respondents WRIT PETITION NO.17330 OF 2009 BETWEEN Shaik Meera Saheb, S/o Khader Saheb, C/o Sk. Nazeer, Vallurupalem Post, Thotlavallur (M), Krishna District. … Petitioner And The Depot Manager, APSRTC, Guntur-II Depot, Guntur, Guntur District. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.26195 OF 2008 AND 17330 OF 2009 C O M M O N O R D E R The Award dated 30.06.2008 passed by the Labour Court, Guntur, in I.D.No.85 of 2006 is under challenge in both these writ petitions. Hence, this common order. Writ Petition No.26195 of 2008 is filed by the Andhra Pradesh State Road Transport Corporation (APSRTC) while Writ Petition No.17330 of 2009 is filed by the workman. By the said Award, the Labour court set aside the punishment of removal from service visited upon the workman by the APSRTC and directed his reinstatement with continuity of service and all other attendant benefits but denied him back wages. Aggrieved by the reliefs granted and the relief denied respectively, the APSRTC and the workman are before this Court. The workman entered the service of the APSRTC as a Driver on 01.09.1973. He was promoted as an Assistant Depot Clerk on 25.03.1998. He was subjected to disciplinary proceedings under charge sheet dated 31.05.2003 on the following charges: “i). For having taken the DC (T) room key at about 1 Hrs. on 14/15.3.2003 from the cash counter without the consent of the custodian i.e., on duty ADC Sri D.Akkireddi and opened the room where the entire ticket stock is kept which constitutes misconduct in terms of Reg.28(xvii) and (xxxi) of APSRTC Employees (Conduct) Regulations, 1963. ii) For having taken an unknown lady to the ticket stock room and bolted from inside, which is against the moral turpitude and which tarnished the image of the Corporation, which constitutes misconduct under Regulation 28(xix) of APSRTC Employees (Conduct) Regulations, 1963. iii) For having absented for your duties from the day of incident cited in charges 1 and 2 and submitted sick certificate at a time on 23.05.2003 i.e., after a lapse of 2 months, which constitutes misconduct under Regulations 28(xxvii) of APSRTC Employees (Conduct) Regulations 1963.” The workman submitted his explanation dated 13.06.2003 but being dissatisfied therewith, the APSRTC initiated an enquiry into the matter. The Enquiry Officer having found against the workman on all counts, the APSRTC after following the due procedure removed him from service by proceedings dated 10.10.2003. The workman’s appeal was rejected on 30.04.2004 and thereafter, his review petition also met with the same fate on 08.07.2004. He thereupon invoked the jurisdiction of the Labour Court under Section 2-A(2) of the Industrial Disputes Act (for brevity, ‘the Act of 1947’) by way of the subject I.D. Perusal of the Award under challenge reflects that though the workman disputed the validity of the domestic enquiry, the Labour Court by order dated 18.04.2008 held against him on this count opining that the domestic enquiry was valid. No doubt it is open to the workman to renew the challenge in this regard before this Court after the culmination of the proceedings before the Labour Court, but in the instant case, the workman did not choose to do so in his writ petition. Understandably so, as the Labour Court upon re-examination of the evidence adduced in the said domestic enquiry came to the conclusion that all the three charges levelled against the workman were not proved. The APSRTC assails these findings while the workman is aggrieved by the denial of back wages by the Labour Court on the principle of ‘no work no pay’. Sri K.Satyanarayana Murthy, learned Standing Counsel for the APSRTC, contended that once the Labour Court came to the conclusion that the domestic enquiry was procedurally valid it ought not to have interfered with the findings recorded therein. This contention turns upon the extent and scope of jurisdiction of the Labour Court under Section 11-A of the Act of 1947. The clear wording of the said provision reflects that if the Labour Court, while dealing with the case of ‘discharge’ or ‘dismissal’ of a workman, is satisfied that such order was not justified it may set aside the same and direct reinstatement of the workman on such terms and conditions as it deems fit. The Labour Court is also empowered to give such other relief to the workman as the circumstances of the case require, including the award of a lesser punishment in lieu of ‘discharge’ or ‘dismissal’. Section 11-A of the Act of 1947 was introduced in the statute by way of an amendment vide Act No.45 of 1971 with effect from 15.12.1971. However, during these intervening decades the scope of the above provision having been subjected to judicial scrutiny time and again has now crystallized in requiring the Labour Court to undertake an enquiry as to whether the case before it qualifies as a ‘proper case’ for re-appreciation of the evidence recorded by the enquiring authority. As pointed out by the Supreme Court in USHA BRECO MAZDOOR SANGH V/s. MANAGEMENT OF USHA BRECO LIMITED[1], the Labour Court should not interfere with the findings of the Enquiry Officer only because it is lawful to do so or because another view is possible. The Labour Court has to come to the conclusion that the case was a proper one for re-appreciation of the materials brought on record by the Enquiry Officer. In the event the Enquiry Officer records a manifestly perverse finding or overlooks material evidence or misinterprets the same there can be no doubt that it would constitute a ‘proper case’ for the Labour Court to re-appreciate the evidence. Reference may be made to the observations of the Supreme Court in USHA BRECO MAZDOOR SANGH: “It is one thing to say that the findings of an enquiry officer is perverse or betray the well-known doctrine of proportionality but it is another thing to say that only because two views are possible, the Labour Court shall interfere therewith. In other words, it is one thing to say that on the basis of the materials on record, the Labour Court comes to a conclusion that a verdict of guilt has been arrived at by the enquiry officer where the materials suggested otherwise but it is another thing to say that such a verdict was also a possible view.” Applying the above ratio to the present case, in so far as charges 1 and 2 are concerned, the Labour Court rightly came to the opinion that the evidence brought on record did not support the misconduct levelled against the workman thereunder. It was therefore not a situation where two views were possible in which case, indubitably the Labour Court ought not to have interfered. This was a case where the evidence brought on record ex facie did not establish the misconduct alleged against the workman under these two charges. As pointed out by the Labour Court, the APSRTC did not even take care to frame these charges correctly in terms of the applicable Regulations. Regulation 28(xvii) of the APSRTC Employees (Conduct) Regulations, 1963 (for brevity, ‘the Regulations’), had no application in so far as the first charge was concerned as no breach of any circular was made out attracting the said Regulation. Regulation 28(xxxi) of the Regulations relates to general misconduct in terms of any act not specifically mentioned in any of the other clauses but which is prima facie detrimental to the interests of the APSRTC. The misconduct alleged could therefore be brought under the broad generality of this Regulation. However, the Labour Court upon a thorough analysis of the evidence came to the conclusion that it was not established that the workman took away the key of the ticket room without the consent of the custodian or that he had any intention of committing any irregularity in connection with the tickets stocks, which could be construed to be detrimental to the interests of the APSRTC. That being so, the finding of the Labour Court in this regard is unassailable on facts. Similarly, in so far as the second charge is concerned, Regulation 28(xix), dealing with repeated or continued negligence or neglect of work, had no relevance to the charge of moral turpitude levelled against the workman. If at all, such misconduct would only have to be brought within the ambit of Regulation 28(xxxi) as rightly observed by the Labour Court. However on facts, the Labour Court found that there was no evidence of the workman having bolted the door of the ticket room while in the company of the lady. Further, she was not an unknown lady as the workman claimed all through that she was the mother-in-law of one of his children. He also readily explained her presence. None of the witnesses who were examined spoke of any misbehaviour by the workman with the said lady. On the other hand, the first report submitted by the on-duty Assistant Depot Clerk (Ex.M1) also did not indicate any basis for such a charge. Being a serious charge, moral turpitude had to be proved with cogent and reliable evidence. The material brought on record being not upto the said standard, there can be no dispute with the finding of the Labour Court that this charge did not stand proved. However, the Labour Court appears to have committed a mistake in so far as the third charge is concerned. This charge was with regard to the continued absence of the workman from duty and his submission of sick certificates at a time on 23.05.2003. The misconduct in this regard was relatable to Regulation 28(xxvii) of the Regulations. Regulation 28(xxvii) reads as under: “28. General Provisions: Without prejudice to the generality of the foregoing regulations, the following acts or omissions shall be treated as misconduct:- ……… (xxvii) habitual late attendance, irregular attendance, absence without leave and without reasonable cause and absence without permission and wasting time or loitering while on duty. ………” While dealing with this charge, the Labour Court opined that the same was not established, basing on the statement of the workman that he used to send sick certificates from time to time. However there is no material or evidence to support the self-serving statement of the workman. The Labour Court, while recording the fact that the workman failed to attend duty from 15.03.2003 to 23.05.2003, opined that it could not be said that he had absented himself from duty without reasonable cause. It however failed to notice that the charge did not relate to whether the workman had absented himself from duty without reasonable cause. In this regard, it may be noticed that Regulation 28(xxvii) speaks independently of both ‘absence without leave and without reasonable cause’ as well as ‘absence without permission’. The Labour Court appears to have dealt with the misconduct only under the former losing sight of the latter limb which makes ‘absence without permission’ a separate and individual misconduct. The finding of the Labour Court on this charge is therefore vitiated by an error apparent. This Court therefore holds that the Labour Court was correct in re-appreciating the evidence in so far as charges 1 and 2 are concerned and in coming to the conclusion that the workman was not guilty thereunder; but it however erred in finding in favour of the workman in so far as the third charge is concerned. Normally, in such circumstances, the proper course would be to remit the matter to the authorities for deciding the appropriate punishment to be imposed on the workman as regards the third charge. It is however relevant to note that the workman attained the age of superannuation on 31.07.2008. Owing to the interim suspension of the Award under challenge by order dated 19.01.2009 passed by this Court in Writ Petition No.26195 of 2008, the workman was not reinstated in service prior to his reaching the age of retirement. Keeping in mind the fact that the workman has already reached the age of superannuation, there would be no point in prolonging the issue by sending the matter back at this stage to the APSRTC or to the Labour Court. There can be no doubt that the punishment of removal from service visited upon the workman by the APSRTC is not commensurate with the gravity of the offence committed by him under the third charge by itself. This is therefore a fit case for this Court to exercise jurisdiction under Section 11-A of the Act of 1947 and deal with the issue of quantum of punishment also. As the matter stands, the Labour Court only denied back wages to the workman. Relevant to note, the workman failed to make an averment before the Labour Court that he was not gainfully employed during the period that he remained out of the service of the APSRTC. In the light of the law laid down by the Supreme Court in J.K.SYNTHETICS LIMITED V/s. K.P.AGRAWAL[2], it is necessary that the workman at least assert on oath before the Labour Court that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. It is only thereafter that the burden would shift to the APSRTC. The Labour Court was however incorrect in applying the principle of ‘no work no pay’ to the case on hand. As pointed out in J.K.SYNTHETICS LIMITED, a case of misconduct wherein the Labour Court on re-appreciation of evidence, exonerates the workman of all charges would stand on par with a case of retrenchment rendered illegal due to violation of procedural norms. In both the cases, the entitlement to back wages would depend upon a host of factors adumbrated by the Supreme Court in a catena of decisions. The principle of ‘no work no pay’ however has no role to play in such a scenario. Denial of back wages by the Labour Court on this ground alone would therefore be unsustainable. As the workman failed to fulfil the initial and minimum requirement as posited in J.K.SYNTHETICS and given the fact that the misconduct alleged against him under the third charge is held to be proved, the denial of back wages upto the date of enforceability of the Award under challenge would, in the opinion of this Court, be sufficient punishment. The workman would be entitled to all the other benefits granted to him by the Labour Court. The Award shall stand modified accordingly. The writ petitions are disposed of with the above directions. In the light of the final order passed in these writ petitions, WVMP No.2812 of 2010 in Writ Petition No.26195 of 2008 and WPMP No.22725 of 2009 in Writ Petition No.17330 of 2009 shall stand dismissed. No costs. -------------------------- SANJAY KUMAR,J ______NOVEMBER, 2010 PGS (P.D) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOs.26195 OF 2008 AND 17330 OF 2009 _____NOVEMBER, 2010 [1] (2008) 5 SCC 554 [2] (2007) 2 SCC 433