A.P.S.R.T.C. AND ANR. v.

S. NARSAGOUD

JANUARY 15, 2003

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.]

Service law:

Andhra Pradesh State Road Transport Corporation Employees (Pay C and Allowances) Regulations, 1964:

Regulations 13(2) and (8)-Jncrements-Effect on of unauthorised absence from duty-Workman-Unauthorised absence from duty-Removal + from service-Industrial dispute-Labour Court directing reinstatement of D workman with continuity of service but without back wages-Writ petition by workman claiming periodical increments which would have been earned by him had he been in service during the period of absence-Allowed by High Court-Held, workman after having been held guilty of unauthorised absence from duty cannot claim benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific dirt!ction in that E regard-Judgment of High Court set aside-Industrial Disputes Act, 1947s.2A(2)-Workman-Claim for increments.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6362 of 2000

F From the Judgment and Order dated 9.12.1999 of the High Court of

Andhra Pradesh in WA I 855/99. '

R. Santhana Krishnan and Guntur Prabhakar for the Appellant.

The following Order of the Court was delivered

The respondent was a Conductor, and hence a workman, in the employment of the appellant Andhra Pradesh State Road Transport Corporation. He remained absent from duty between 5.6. I 982 and 8.8. I 982 + on the first occasion and again between I 3. I 0. I 992 and I . I I .1992 on the second occasion. A chargesheet was served on him alleging the period of

-r absence to be an unauthorised absence from duty. The respondent pleaded A that he had remained absent because of ill health-due to jaundice for the first period of absence and due to chest pain and fever for the second period of absence from duty. Jn the departmental inquiry proceedings the two charges referable to two periods of absence from duty framed against the respondent were found to be proved and the explanation for absence B as offered by him was found not to have been substantiated. The respondent t was inflicted with the punishment of removal from service.

The respondent raised a dispute under Section 2(A)(2) of the Industrial Disputes Act. 1947, as amended in its application to the State of Andhra Pradesh by A.P. Amendment Act No. 32 of 1987. The Labour Court by its Award dated 24. 12. 1997 held that no fault could be found with the disciplinary c

tinquiry proteedings or with the findings arrived thereat. However, the Labour Court con, cluded that though the respondent was guilty of the charges levelled against him but be had been without employment during the period of absence and has suffered thereby and so the penalty of not providing backwages would be the appropriate penalty in the facts and circumstances of the case, D "while ordering for reinstatement with continuity of service". In the operative part of its Award the Labour Court reiterated that an Award was being passed .. "directing the respondent to reinstate the petitioner in service with continuity of service but without backwages".

Feeling aggrieved by the Award of the Labour Court, the respondent E preferred a writ petition in the High Court which was heard and disposed of .by a learned single Judge vide the judgment dated 16.9.1999. A grievance was raised before the High Court that although the respondent was reinstated, but while fixing the wages payable to him on his reinstatement, the periodical increments which would have been earned by him had he been in service F ~· during the period of absence were not taken into account. The High Court directed the appellant Corporation to compute the periodical increments that would have been earned by the respondent had he been in service during the period of absence from duty and to fix the wages payable to the respondent after his reinstatement by taking into account the said increments. The appellant preferred an intra Court appeal which has been dismissed by a Division G Bench of the High Court by its impugned order. The appellant has filed this .., appeal by special leave .

The respondent has chosen to remain absent of notice having been served on him. Therefore, the hearing has been set down ex parte against H him.

The only submission made by the learned counsel for the appellant is that when an employee remains unauthorisedly absent from duty and though he has been directed to be reinstated with continuity of service by a judicial order unless .and until , there is,~ djrection for release of conseq~nt!8itbn.f!~ and specificajl~ for the. bi; ie, f1Mf Jracrments being give111t1'.~~~ 1th~:i!t; m., Jqrr,~ B might have; eptecL~-'1fiJlgr1\nP.i9.<t, of unaijtborisrd.ii~~e, qp"e..., fr.o,1Pr, d~~>f

merely b~Ga\\S' tb~1GmP.l9'~.ft ~~~Jl~rllllPw.~.ttU~..JPl1~Jit.1Rf gqtll!;'Jl)S gf service the be.l}fi.t-f s.\1£~1iqg~ffi~Sl63"\h~i fff}a§tfl lfl i~;~:j1Jl~. RF~~~, t of continuity of service only means that for the purpose of seniority and pensionafy; lienefiitS' tlie 'j>ettiddm aHsenceist?.all bIDtaken 1into~MfQunt:11s spent on duty,'lsubmitted<tt1ei leaitredlqqunsel rfot the:.appellaQUlti supt>Q~JfJ(ithis C submisi'onJhaJ<hils 1atsbf iri\iiedd1olfr£attentioil to:1tlrenpooisio11s '@f rndbr-a

PradeshwlR.olidrT!J'enipm!ti1001ponatlon Employees~.RaS! rand !Afluwances)

Rg(llatiUits;1:t9.6ttoaild

1ra.1Cittblariiss11!ditltereundert.byoAIJ?1SYR.£<q. .. ·.i! i,, ,,! l!)ginrb rll 1o '(i!iug 2sw tnbnoq~51 ~Hli rl;; uorlt rnrll b!)bubno:> twu J

, )! :· .. 2rJdt~JSDi4i!l,:f gHJa~Hrn§!:JliWJITP&,~ ifrrn,~1il1Jdr£t;,<?Pbl~tf~1.1!P , fiM~iti9l

iq~§~~.9JY~ffiq0pfffn;~ 0~fw.pwtiP.!l; ~i:.~~\fl %~9lfii&!f.l., t\9XW D w:ov.i<JR§ 1w~:nlWGP.~1YH~rrs nG1 rh ni llnn!lq ~11fr1q01qqi:; ::; rh d bluow

5 v ; JTji_r_qPI)'11Al1 ·<la?; Viif 2a1icrJl l HIP Rct1n1~-cHle ~&Wtft~ iy 3i1<lh&'effil!n~ l~ rbi't :.·.:2.:wq ghr5dt 22nw brn1w A ns 1.Grll b5J£1~11:;1 l1llo:) iuod1; J :;.rlt b16Vt A cJi 1o tmq 1me-sca e. niuni 1110:> rltiw '..l:>iv1!)~ ni 1511oitil:Jq !)fh 5l6J2ni51 ot Jn5b11oq2::>1 !)fh gnitn1ib"

(2) Service in another post, wh~siJhr~Jli?t~\)iMCi.%" g!'fi.Ciij\i~

capacity, service on deputation and leave other than extraordinary

• •': 'Jl 1ave 1tfflea'Vecw1\ntd.lt.\5ayi1fottnt flJr i"!meiiiwn ttfeiltiml:-scale ti ~plicaBt~ 2to1 tdeitfsflt>tf-\viHtM tfie re~1yee ttottl& li''.llil1n;.rWi A v.Jb 1il' as >iR ftlie"Jtffne£S<:i'fetapptiab~~'lt~ ftijlppr p~!:t§,5lfra~, ,, "tion \vliiclh'1fei~1irnia1& 'a lien ff ttlt'.ai~~en'.JflbtJ'b~ senac:t:

.:fi! "·" !i:'fli'.>'I <id flO I' r,: ,;1foy1; q 2~!Jl. !I '.Jr!J !.!ni; i:f! :J(irfw Jud , , go.vi_ded th, aHhF ~9~P.rt~!1, t ut~rj~ ·~~Wh)}vMfiM>lrirrr\q,~?ir case in which it .is atified,, hat the extra%d1P.af, Y1d~ve .or_\~~~; without pay, as the case may be, was taken on acco~1,1t of illni;:ss or any other cause beyond the employee's control, to direct that such period shall count for increments under this clause.

Explanation : Where an employee is appointed to officiate in a post on a time-scale of pay but has his pay fixed below the minimum of the time-scale under clause (S) of the regulation 9, the period of officiating service shall not count for increments under clause (2) above

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. ~-

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(8) A period of overstayal after the expiry of leave of joining time, as the case may be does not count towards increments unless it is commuted into extraordinary leave or leave without pay, as the case may be and extraordinary leave, or leave without pay is

specifically allowed to count for increments." B

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xxx xxx xxx

On 8.9.1992, the Corporation issued Circular No. 19/9 laying down guidelines for implementation of the Awards of Labour Courts in the matter C of fixation of pay of employees reinstated pursuant to such Awards subject to result of writ petitions. The Circular provides inter alia as under:-

"(2) When an employee is reinstated into service with continuity of service only, the last pay drawn by the employee has to be fixed at the appropriate stage in the revised pay scale 1989 without D adding any notional increment for the period out of service.

xxx xxx xxx

xxx xxx • xxx

(4) On fixation of pay as on the date of reinstatement annual E increment may be regularly drawn."

xxx xxx xxx

xxx xxx xxx

However, it appears that consequent upon the judgement of the learned F single Judge dated 16.8.1999. and other.similar judgments disposing of the writ petitions, the Corporation was compelled to issue another circular whereby it directed that in view of the said judgments of the High Court it was necessary that in a case where an employee was directed to be reinstated with continuity of service the pay of the employee shall be re-fixed by giving notional increments for the period out of service though the monetary benefit G of revised fixation shall be given only from the date of reinstatement. The effect of the judgment of the learned single Judge, upheld by the Division Bench and the Circular issued consequent upon the judgment of the High Court is that the employee being reinstated, inspite of having been held guilty of unauthorised absence from duty, continues to earn increments though H

A there is no payment of wages for the period of absence. This results into a incongruous situation, submitted the learned counsel for the appellant. 't

We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity

B 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 frem reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments -t earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the c benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with benefit of continuity in service. + The Regulations referred to hereinabove clearly spell out that the period D 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 over-stayal into extraordinary leave or leave without pay is accompanied by a specific order to count the period for increments. A period of unauthorised absence E from duty treated as a 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 over-stayal. 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 F of the period actually spent on duty. The direction of the High Court entitling the respondent to earn increments during the period of unauthorised 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.

G For the foregoing reasons, we are of the opinion that the impugned judgment of the learned single Judge of the High Court and upheld by the Division Bench cannot be sustained. The judgment of the learned single Judge and the Division Bench are, both, set aside. The appeal is allowed. No order as to the costs.

H R.P.

Appeal allowed.