THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NO.286 OF 2004
DATED JANUARY, 2010
THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION NO.286 OF 2004
ORDER:
The oft-raised issue of entitlement of a workman to back wages for the period that he remained out of service falls for consideration once again in this writ petition.
The petitioner challenges the Award dated 31.01.2000 passed by the Labour Court-II, Hyderabad, in I.D.No.110 of 2000 to the extent it denied him back wages and seeks a consequential direction to the Andhra Pradesh State Road Transport Corporation (APSRTC) to pay him back wages along with consequential benefits.
The petitioner entered into the service of the APSRTC as a Conductor on 04.02.1999. He was removed from service, by directing deletion of his name from the list of approved/selected Conductors, under Order dated 31.01.2000 basing on the disciplinary proceedings initiated against him in respect of certain cash and ticket irregularities. Aggrieved thereby, he raised a dispute under Section 2-A(2) of the Industrial Disputes Act, 1947 in I.D.No.110 of 2000 before the Labour Court-II, Hyderabad.
By its Award dated 06.11.2000, the Labour Court set aside the order dated 31.01.2000 passed by the APSRTC and directed it to reinstate the petitioner in service with continuity of service but without back wages. The Labour Court found that the APSRTC had failed to prove beyond reasonable doubt that the petitioner had committed the misconduct of failing to issue tickets to six passengers. On evidence, the Labour Court found that the petitioner had only failed to punch the tickets properly. The Labour Court further found that the punishment of deleting the name of the employee from the list of approved Conductors was not authorized by the Regulations. Given the nature of the irregularity actually committed by the petitioner, the punishment of termination from service was held to be harsh and shockingly disproportionate. The Labour Court therefore granted the relief of reinstatement in service with continuity of service but denied the petitioner back wages. Aggrieved by this denial, the petitioner is before this Court.
The petitioner is stated to have been reinstated in service on 16.03.2001 pursuant to the Award passed by the Labour Court. Therefore, the issue for consideration presently is his entitlement to back wages from 31.01.2000, when the APSRTC removed him from service, upto 16.03.2001.
It is relevant to note that in his petition filed before the Labour Court, the petitioner specifically averred that since the date of his removal from service, he remained unemployed and could not get any alternative employment in spite of his best efforts and that he and his family members were facing much hardship on that account. Similarly, before this Court the petitioner stated in his affidavit that since the date of his removal, i.e., 31.01.2000 till he was reinstated in service, i.e., 16.03.2001, he remained unemployed as he could not get any alternative employment in spite of his best efforts. He also stated that during the removal period he suffered much hardship and that he had to take loans from others for survival and was in the process of clearing the said loans from the salary received after reinstatement. This aspect was highlighted by the petitioner to explain the delay on his part in approaching this Court to challenge the Award in so far as the denial of back wages is concerned.
The APSRTC, on the other hand, resorted to a bald denial of all the material allegations made by the petitioner in its counter filed before the Labour Court. In spite of the petitioner stating that he remained unemployed, no effort seems to have been made by the APSRTC to verify this fact and rebut it with suitable evidence. Similarly, before this Court the APSRTC attempted to place the burden of proof on the petitioner by stating that it did not admit the factum of his not being gainfully employed from 31.01.2000 and that he was put to strict proof of his averment in this regard. Reference was made to precedential law on this aspect but no further effort is evident on the part of the APSRTC to rebut the claim of the petitioner that he was not gainfully employed.
This tendency on the part of the APSRTC to casually file counter affidavits in matters of this nature without making any effort to factually ascertain whether the workman was gainfully employed during the period he remained out of its service, requires to be deprecated strongly. Being Officers of a Public Sector Undertaking, the responsibility rests with the deponents to these counter affidavits to see that all care and caution is exercised in protecting the interests of the Undertaking and safeguarding public monies. Such responsibility, unfortunately, is more evident by exception.
In the present case, where the only issue raised is with regard to the entitlement of the petitioner to back wages, the APSRTC in its usual fashion put forth a bald denial and tried to place the onus upon the petitioner himself to show that he was not gainfully employed. It is no doubt true that various other factors would play a role in ascertaining the entitlement of a workman to back wages, as pointed out by the Supreme Court in the observations extracted in the counter affidavit. However, the factum of the workman being gainfully employed is of crucial importance in deciding the quantum of back wages payable, if any.
In this regard, reference may be made to the Judgment of the Supreme Court in J.K.SYNTHETICS LTD. v. K.P.AGRAWAL[1].
Apropos payment of back wages, the Supreme Court observed that there was a significant change in the attitude of the Courts over a period of time and that it was no longer considered to be an automatic or natural consequence of reinstatement. The Supreme Court referred to its earlier Judgment in U.P.STATE BRASSWARE CORPN. LTD. v. UDAY NARAIN PANDEY[2], wherein it was held that a pragmatic view has to be taken by the Court so that an industry may not be compelled to pay the workman for the period during which he apparently contributed little or nothing at all to it. It was further observed that back wages should not be granted ‘mechanically’ only because on technical grounds or otherwise an order of termination is found to be unsustainable. What the Supreme Court stated with regard to grant of back wages is equally applicable to denial of back wages also. Therefore, the Labour Court ought not to ‘mechanically’ deny back wages to the workman without exercising or applying its mind. The observations of the Supreme Court in G.M., HARYANA ROADWAYS v. RUDHAN SINGH[3] are apposite:
“8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.”
Similarly, the observations of the Supreme Court in J.K.SYNTHETICS LTD.1 with regard to the aspect of gainful employment during the period that the workman remained out of service are illuminating:
“18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh3 and Uday Narain Pandey2. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.”
In the light of the above observations, it is clear that the action of the APSRTC in seeking to place the burden of proof on the petitioner to show that he was not gainfully employed, is untenable. It was for the APSRTC to verify this aspect as the burden of proof shifted to it in view of the averment of the petitioner that he was not gainfully employed. No such exercise is evident from the pleadings of the APSRTC, be it before this Court or before the Labour Court.
Further, the Award of the Labour Court reflects that the denial of back wages to the petitioner was ‘mechanical’ and there was no discussion whatsoever on this aspect. The established facts reflect that the misconduct alleged against the petitioner was not proved and the Labour Court found that he was only guilty of improper punching of tickets. As he was reinstated in service pursuant to the Award of the Labour Court, his claim for back wages is limited to a period of less than thirteen months. As this was not a case of ‘misconduct reinstatement’ as categorized in J.K.SYNTHETICS LTD.1 and keeping mind the aforestated facts and circumstances of the case, the denial of back wages in entirety to the petitioner by the Labour Court is unsustainable. As the petitioner was found to have committed the irregularity of punching the tickets improperly, he cannot stake a claim for full back wages. He had only been in service for a period of one year and ought to have exercised more care and diligence in the discharge of his duties. In the totality of the circumstances, this is a fit case for reducing the back wages payable by fifty percent. Accordingly, there shall be a direction to the APSRTC to pay fifty percent (50%) of the back wages to the petitioner from 31.01.2000 upto 16.03.2001, being the period that he remained out of its service, within a period of one month from the date of receipt of a copy of this order.
The Writ Petition is accordingly allowed in part but, in the circumstances, without costs.
SANJAY KUMAR, J.
January, 2010. VGSR
[1] (2007) 2 SCC 433
[2] (2006) 1 SCC 479
[3] (2005) 5 SCC 591