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2022 DIGILAW 1140 (AP)

P. Showreelu v. T. H. Depot Manager

2022-10-28

V.SUJATHA

body2022
ORDER : 1. The writ petition is filed under Article 226 of the Constitution of India seeking the following relief: “to issue a Writ or Order more in the nature of Mandamus in declaring the award dated 09.12.2015 in I.D. No. 12 of 2010 as arbitrary and illegal and violative of Articles 14 and 21 of the Constitution of India and the provisions of the Industrial Disputes Act, 1947 in so far as it relates to denial of back wages, attendant benefits with interest @ 12% p.a. from their due date till realisation only by modifying the same to that extent and consequently to direct the respondents 1 and 2 to pay back wages all other attendant benefits with interest at 12% p.a. from due date till the date of realisation.” 2. The case of the petitioner, in brief, is that the petitioner joined as driver in APSRTC in 1997 and worked as such up to 10.12.2008. While the petitioner was working in the 1st respondent depot, he was issued charge sheet dated 11.12.2008 alleging that while he was performing his duty on the route Guntur to Amaravathi on 01.12.2008, an auto bearing No. AP-7W-2074 coming in opposite direction dashed the bus driven by the petitioner at about 11.30 P.M. resulting in the death of three inmates travelling in the auto on the spot, while the other passengers received injuries. It is further alleged that the accident occurred only due to the rash and negligent driving of the petitioner and he was responsible for the damage caused to the bus, which constitutes misconduct under Regulation 28 of APSRTC Employees (Conduct) Regulations 1963. The petitioner submitted his explanation denying the charges levelled against him and a domestic enquiry was conducted. Thereafter, based on erroneous findings of the Enquiry Officer, the petitioner was removed from service vide orders dated 29.04.2009. The authorities concerned rejected the appeal as well as the review preferred by the petitioner against the said orders. Thereafter, the petitioner raised an industrial dispute in I.D. No. 12 of 2010 before the 3rd respondent-Labour Court. The 3rd respondent, on comprehensive adjudication of the dispute, passed the award dated 09.12.2015, which read as follows: “In the result, the petition is partly allowed and the respondents are directed to reinstate the petitioner giving continuity of service. However, the petitioner is not entitled for back wages and attendant benefits.” 3. The 3rd respondent, on comprehensive adjudication of the dispute, passed the award dated 09.12.2015, which read as follows: “In the result, the petition is partly allowed and the respondents are directed to reinstate the petitioner giving continuity of service. However, the petitioner is not entitled for back wages and attendant benefits.” 3. Pursuant to the said order of the 3rd respondent, the petitioner was reinstated into service, but without back wages. The grievance of the petitioner is that when misconduct attributed against him was not proved, denial of granting back wages is nothing but illegal and contrary to settled principles. Challenging the said order of the Industrial Tribunal to the extent of denial of back wages and attendant benefits, the present writ petition is filed. 4. The respondents filed their counter, while denying the averments of the writ petition, contended that due to the rash and negligent driving of the petitioner, which occurred on 01.12.2008, three passengers travelling in the auto died on the spot and other passengers were received injuries, besides causing huge damage to the bus and if at all the petitioner had taken precautionary steps, he would have averted the accident. A case was registered by the police against him as Crime No. 127 of 2008 under Section 304A and 337 IPC. The respondents further contended that the Enquiry Officer conducted a detailed enquiry and submitted his report holding that the charges levelled against the petitioner was proved. On perusal of the entire evidence on record, the explanations as well as the objections of the petitioner, final orders were passed removing the petitioner from service. The appeal as well as review filed by the petitioner were rejected on merits. Thereafter, the petitioner filed a memo on 09.11.2015 before the 3rd respondent-Labour Court stating that he was not questioning the validity of the domestic enquiry, which was held valid. There was no oral evidence on either side. The respondents further stated that the accident occurred is a major accident where six persons died and nine persons were injured. When the petitioner was reinstated into service with continuity of service, the question of denying back wages and attendant benefits does not arise, more so, there is no scope for re-appreciating the evidence in writ petitions. The writ petition is devoid of merit and the same is liable to be dismissed. 5. When the petitioner was reinstated into service with continuity of service, the question of denying back wages and attendant benefits does not arise, more so, there is no scope for re-appreciating the evidence in writ petitions. The writ petition is devoid of merit and the same is liable to be dismissed. 5. Heard Sri M. Pitchaiah, learned counsel for the petitioner and Sri N. Srihari, learned standing counsel for the respondents 1 and 2. 6. While reiterating the contents of the writ petition, learned counsel for the petitioner vehemently argued that the 3rd respondent-Labour Court, having held that misconduct attributed against the petitioner is not proved, grossly erred in not granting back wages and attendant benefits. He contended that denial of back wages will embolden the unscrupulous employers to effect arbitrary termination and due to denial of back wages and other attendant benefits, the petitioner will be put to severe financial loss and other benefits which would affect the terminal benefits also. He further contends that the respondents 1 and 2 failed to add increments to the salary of the petitioner by taking into consideration the period from the date of removal till his reinstatement into service, on the ground that he was employed elsewhere during the said period. 7. On the other hand, learned standing counsel for the respondents, while reiterating the contents of the counter, supported the order passed by the 3rd respondent-Labour Court. He further contends that the claim of the petitioner that he was not employed elsewhere during the period of removal from service till his reinstatement is not acceptable on the ground that there was no evidence on either side, that too there was no cross-examination to rebut the same. Ultimately, he contends that since the award passed by the 3rd respondent-Labour Court is well justified, the same needs no interference. 8. Keeping in view the above rival contentions, a perusal of the award of the 3rd respondent-Labour Court would show that it is the specific case of the petitioner that there was no negligence on his part in causing the accident as he stopped the bus to the left side of the road on seeing the auto coming in opposite direction, but, the driver of the auto drove the same in a rash and negligent manner and dashed the bus, as he could not control the auto. But, in the domestic enquiry, though several documents were placed before the Labour Court for proving that the accident took place due to the rash and negligent driving on the part of the driver, the Enquiry Officer failed to take into account the very fact that report given to the police by the V.A.O. in-charge of the place of the accident disclosed that both the vehicles dashed each other and thereby the accident took place. Even Ex.M.6 the rough sketch of the accident also suggested that there was no fault on the part of the petitioner; that the bus was stationed on the left side margin of the road and that the auto was also facing towards Amaravathi. The specific case of the petitioner is that the auto dashed to the left side of the bus and thereby the auto turned back and the topographical situation mentioned in Ex.M.6 document totally supports the case of the petitioner regarding the manner in which the accident took place. It is also the specific case of the petitioner is that the petitioner was enquired and tried both on departmental side as well as on criminal side for the same charge. When the prosecution failed to prove the guilty of the petitioner in the criminal case and thereby he was acquitted, the one sided evidence of the witnesses should not be relied on in the departmental enquiry. The Labour Court categorically held that the accused was the driver of the bus at the time of accident, but, observed that no evidence was let in to show that he was rash and negligent in driving the bus; and when the evidence of the witnesses was examined, each witness stated differently as to the number of passengers travelled in the auto; and that PW.8 stated that in total eleven passengers were present in the auto at the time of incident, who requested the driver of the auto to drive the auto slowly. The Labour Court ultimately gave a finding that the bus was present at the left side of the road margin and was coming in its regular course, whereas the auto was coming in a wrong direction and dashed the bus towards left side and that there was no possibility for the driver of the bus to drive the bus in a rash and negligent manner and accordingly, the Labour Court set aside the finding given in the Departmental enquiry, while directing the reinstatement of the petitioner into service with continuity of service, but, without back wages. 9. It is the contention of the learned counsel for the respondents contended that the Labour Court did not found the termination order to be illegal and arbitrary, but, had set aside the findings given in the departmental enquiry and directed the reinstatement of the petitioner into service with continuity of service, but, without back wages. It is the case of the respondents that there was no evidence regarding alleged employment and earnings of the petitioner during the period of removal till his reinstatement. On the other hand, it is the contention of the learned counsel for the petitioner that as per Section 11A of the Industrial Disputes Act, the petitioner is restricted to enter into the witness box to adduce evidence, as such, the question of entering into the witnesses box and putting himself for cross-examination does not arise. Leaned counsel for the petitioner vehemently argued that the removal of the petitioner from the service is not at all proper and that a direction to reinstate him with continuity of service and back wages has to be made. The petitioner was removed from service on 29.04.2009 and there was no evidence regarding the alleged employment and earnings of the petitioner during the period of removal till his reinstatement. The petitioner was removed from service on 29.04.2009 and there was no evidence regarding the alleged employment and earnings of the petitioner during the period of removal till his reinstatement. In support his case, he relied upon Section 11A of the Industrial Disputes Act 1947, which reads as under: Section 11A: Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. 10. In support of his contention, learned counsel for the petitioner relied upon a decision reported in Shambhu Nath Goyal vs. Bank of Baroda and Others, (1983) 4 SCC 491 wherein the Hon’ble Supreme Court held as follows: “...........The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduced the necessary evidence unless the object was to rake up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this court, after such a long lapse of time. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman was gainfully employed anywhere. The management has not furnished any particulars in this regard even before this court, after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative....... It would not be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time.......” 11. Similarly, in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and Others, (2013) 10 SCC 324 wherein the Hon’ble Supreme Court held as under: “...........In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/ workman, the financial condition of the employer and similar other factors. Ordinarily an employee of workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages.....extract.......” 12. On the other hand, learned standing counsel for the respondents relied upon a judgment reported in Rajasthan State Road Transport Corporation, Jaipur vs. Phool Chand, (2018) 18 SCC 299 wherein the Hon’ble Supreme Court held as follows: “...........In our considered opinion, the courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/ termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence, not entitled to claim any back wages. Initial burden is, however, on the employee. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial, depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages are required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies, etc., were elaborately discussed in several cases by this Court wherein the law on these questions has been settled.......” 13. When the prosecution failed to prove its case beyond reasonable doubt and thereby the petitioner was acquitted in a criminal case, the respondent Corporation cannot terminate the services of the petitioner basing on one sided witnesses in the departmental enquiry. As stated supra, from the evidence placed during the domestic enquiry and the criminal trial, it is difficult to give a positive finding that the petitioner was responsible for the incident and admittedly both the enquiries were held on the same point and that a combined reading of the material evidence disclosing that the finding given by the enquiry officer needs interference. 14. In view of the above facts and circumstances of the case, this court is of the considered view that since there was no evidence regarding alleged employment in view of restriction as per Section 11A of the Act in adducing evidence, the order of the Labour Court in so far as it relates to denial of back wages is not sustainable in law and the same is liable to be set aside. Accordingly, the writ petition is allowed and the award of the Labour Court in so far as it relates to denial of back wages is set aside. 15. However, the petitioner is entitled to back wages and the respondent Corporation is directed to pay back wages to the petitioner within a period of four months from the date of receipt of a copy of the order. 16. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.