WP/26589/2006 of K.S.Narayana, Vs the Managing Director, A.P.S.R.T.C., on 22 December 2006

Order:

This writ petition is filed seeking to quash the award passed byrespondent No.3-Labour Court, Warangal, in I.D. No. 104 of 2004, dated10.10.2006, in so far as denying the back wages and continuity ofservice for all purposes.

The petitioner was appointed as Conductor on daily wages in therespondent-A.P.S.R.T.C., on 24.03.1992, and his services wereregularized with effect from 04.08.1995. He was charge sheeted on30.08.2001 alleging that he unauthorisedly absent from duties from29.06.2001 to 05.09.2001. The petitioner failed to submit hisexplanation to the said charges, and also did not attend before theEnquiry Officer, in spite of issuing several notices. Therefore, theEnquiry Officer, having conducted an ex parte enquiry, held the chargesproved. Based on the findings of the enquiry report, a notice callingupon the petitioner to show cause as to why he shall not be removedfrom service was issued. The petitioner even did not reply to the saidshow cause notice. Therefore, the 2[nd] respondent, namely the Depot Manager, issued the proceedingsdated 20.03.2002 imposing the punishment of removal from service. Aggrieved by the same, the petitioner preferred appeal and reviewpetition before the appellate and review authorities, which were rejectedon 05.06.2002 and 17.10.2002 respectively. Thereafter, the petitionerraised an industrial dispute in I.D. No. 104 of 2004 and the Labour Court,vide the award impugned in the writ petition, set aside the removal orderand directed the respondent-APSRTC to reinstate the petitioner intoservice as ‘fresh conductor’ in the present scale of pay, but withoutcontinuity of service, back wages and other consequential benefits. Assailing the award of the Labour Court in so far as denying continuity ofservice, back wages and other consequential benefits, the petitionerfiled the present writ petition.

Heard the learned counsel for the petitioner, the learned StandingCounsel for respondent Nos.1 and 2-APSRTC, the learned Government Pleader for Labour and perused the award of the Labour Court.

The learned counsel for the petitioner submitted that the LabourCourt failed to see that the petitioner was absent due to his sickness andthat no charge sheet nor show cause notice was served on him and theentire disciplinary proceedings have been initiated behind his back. Hefurther submits that the petitioner has been serving the respondent-Corporation for more than 15 years, and when the Labour Court came toa conclusion that the petitioner is entitled for reinstatement,automatically he is eligible for the back wages as well as the continuityof service and that the award of the Labour Court in so far as denying theback wages and attendant benefits is disproportionate to the provedmisconduct. He, thus, prayed to set aside the award passed by theLabour Court in so far as denying the back wages and attendant benefitsand allow the writ petition.

On the other hand, learned Standing Counsel for respondentNos.1 and 2-Corporation contended that the petitioner is habitualabsentee, and on similar grounds of absenteeism, the petitioner wasearlier censured once, his increment was deferred twice and he wasalso removed from service once, but there is no change in the attitude ofthe petitioner. He submits that the petitioner failed to submit hisexplanation to the charges leveled against him, and also did not attendbefore the Enquiry Officer, in spite of issuing several notices. He furthersubmitted that the punishment imposed against the petitioner is notdisproportionate to the proved misconduct. Given the misconduct,alleged against the petitioner, which stood proved, the petitioner has tobe dismissed from service, but the disciplinary authority has imposed alesser punishment of removal from service, and the Labour Court, on re-appreciation of the entire material on record and holding that thepunishment of removal of the petitioner from service is not in proportionto the charges proved, set aside the removal order and directed therespondent-APSRTC to reinstate the petitioner into service as ‘freshconductor’, but without continuity of service, back wages and otherconsequential benefits, and no interference is called for therewith.

The parameters and scope of judicial review of this Court underArticle 226 of the Constitution of India to issue a writ of certiorari arelimited to – firstly to correct errors of jurisdiction when the inferior Courtor Tribunal acts without jurisdiction or in excess or fails to exercise it,secondly correct errors of law apparent on the face of the record, andthirdly correct and interfere with the findings that are based on suspicion,conjectures or surmises or no reason. The law is well settled that thisCourt does not act as an appellate authority and reappraise theevidence while exercising certiorari jurisdiction. It is within theseparameters, the impugned award of the Labour Court, is to beexamined.

The petitioner, as can be seen from the award, did not allege anyprocedural irregularity in the conduct of the enquiry. The petitioner wascharge sheeted on 30.08.2001 alleging that he unauthorisedly absentedfrom duties from 29.06.2001 to 05.09.2001. As the charge sheet sent tothe petitioner through RPAD was returned undelivered with anendorsement “the addressee is not available – intimated the fact ofregistered post cover to his family members at the residence – not turnedup hence returned”, the same was exhibited on the notice board, butthere was no response from the petitioner. Then, a domestic enquirywas ordered, and the notice dated 11.12.2001, sent by the EnquiryOfficer, requesting the petitioner to attend for enquiry on any dayconvenient to him, was also returned undelivered with an endorsement“the petitioner refused to acknowledge the cover”. Since the petitionerneither submitted his explanation to the charge sheet nor attendedbefore the enquiry officer, in spite of issuing several notices, an ex parteenquiry was conducted and the Enquiry Officer, on consideration of theentire material on record, held that the charges leveled against thepetitioner were proved. The disciplinary authority, considering thenature of the proved charges, imposed punishment of removal fromservice. The Labour Court, on re-appreciation of the entire material onrecord, though found that in spite of giving several opportunities, itbecame a habit for the petitioner to absent to his duties without prior

Conclusion

intimation or sanction of leave, and it definitely amounts to misconduct,but keeping in view the consent given by the respondent-Corporation forreinstatement of the petitioner into service afresh, set aside the removalorder and directed the respondent-Corporation to reinstate the petitionerinto service as ‘fresh conductor’, but without continuity of service, backwages and other consequential benefits. Had the Labour Court heldthat the charges leveled against the petitioner are not proved, then thepetitioner would have been justified in contending that he should beawarded backwages and attendant benefits, but that is not the case. The Labour Court, having held that the charges leveled against thepetitioner are proved, however, keeping in view the consent given by therespondent-Corporation for reinstatement of the petitioner into serviceafresh, has taken a lenient view and altered the punishment from that ofremoval from service to fresh reinstatement. Merely because thepetitioner was directed to be reinstated into service by altering thepunishment, it does not mean that he is entitled to backwages.

Backwages do not follow as a result of the order of removal ortermination being set aside. Grant of backwages is not automatic ormechanical, it depends upon facts and circumstances of each case (see U.P. State Brassware Corpn.Ltd. v. Uday Narain Pandey[1]). It is not acase where the punishment of removal passed by the disciplinaryauthority against the petitioner was set aside by the Labour Court onaccount of any procedural lapses committed by the enquiry officer in theconduct of the enquiry or that the enquiry is fraught with illegalities orthat the disciplinary authority or the Labour Court had passed orders inviolation of the principles of natural justice. But the Labour Court hasaltered the order of removal passed by the disciplinary authority to that ofreinstatement into service as ‘fresh conductor’, but without continuity ofservice, back wages and other consequential benefits on the ground thatthe respondent-Corporation expressed their consent for reinstatement ofthe petitioner afresh into service and the punishment imposed wasdisproportionate to the proved misconduct.

In Karnataka Bank Ltd. V. A.L. Mohan Rao[2], the apex Court held that it is not for the courts to interfere in cases of gross misconductof the nature with the decision of the disciplinary authority so long as theinquiry has been fair and proper and misconduct proved, and that insuch matters, it is for the disciplinary authority to decide what is the fitpunishment. In that view of the matter, merely because the order ofremoval passed by the disciplinary authority was altered by the LabourCourt to that of reinstatement into service, it does not mean that thepetitioner is entitled to be granted backwages, and more so because heremained out of employment during the period between the date of hisremoval from service and till he was reinstated by virtue of the impugnedorder.

For the foregoing reasons, there is no merit in the writ petition,and the same is accordingly dismissed. No costs.

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N.V. RAMANA, J.

Date: 22.12.2006NSR/ISL

1 (2006) 1 SCC 479 (2006) 1 SCC 479

2 (2006) 1 SCC 63 (2006) 1 SCC 63