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2015 Supreme(AP) 587
In the High Court of Judicature at Hyderabad
SANJAY KUMAR, J.
Md. Ghouse – Petitioner
Versus
The A.P.S.R.T.C. rep. by its Depot Manager, Gadwal & Others – Respondent
Writ Petition No. 6973 of 2005
Decided On : 15-09-2015
For the Petitioner:S.M. Subhan, Advocate.
For the Respondents:R1 & R2, B. Mayur Reddy, Advocate, R3, Govt. Pleader for Labour.
Headnote:
State Road Transport Corporation – Workmen – Service benefits - Benefits for the period that he remained out of employment, the petitioner-workman is before this Court. He seeks a consequential direction to the Andhra Pradesh State Road Transport Corporation (APSRTC) to reinstate him in service as a Driver with continuity of service with full and all other consequential benefits petitioner-workman was a Driver in the service of the APSRTC. His services were regularized in the year 1992. He was removed from service by order on the following charges “For having absented for duty authorise from 1-5-1997 till date, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees (conduct) Reg.1963“For repeated irregular attendance causing cancellation of services, inconvenience Public, besides loss of revenue to the corporation, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees (conduct) Reg.1963” Aggrieved by his removal from service, he invoked the jurisdiction of the Labour Court under Section 2-A(2) of the Industrial Disputes Act, 1947. Upon consideration of the material placed before it, the Labour Court held that the charges level against the petitioner-workman were not established. Consequently, the removal order passed against him was set aside. Significantly, during the course of arguments before the Labour Court, the petitioner-workman endorsed that he was not pressing his claim for back wages. It was on this ground that the Labour Court denied him such relief and directed his reinstatement in service with continuity of service –Held, factual matrix obtaining in the present case is diametrically different from that in the case on hand, the charges of unauthorized absence and repeated irregular attendance were not established against the petitioner-workman as per the Labour Court. He was therefore given a clean chit in this regard unlike the findings recorded against the workman in S.NARSAGOUD (Supra). Further, when the Supreme Court observed that there is a difference between orders of reinstatement with continuity of service simpliciter and orders where reinstatement is accompanied with specific directions, it would obviously mean that there should be a discussion in this regard by the Labour Court qualifying the relief granted and justifying the relief denied, expressly or by way of necessary implication. In a case where the workman is ultimately held to be innocent of the charges level against him, thereby rendering his removal from service illegal, the law laid down (Supra) would apply and the order of reinstatement would mean that he has to be restored to his original position prior to such removal. After giving him a clean chit, denying him the benefit of increments at least notionally for the period that he was kept out of service through no fault of his, would mean that he is being inflicted with a punishment despite his being found innocent. Such an anomalous situation obviously cannot be the intendment of the law laid down by the Supreme Court in S.NARSAGOUD (Supra). The principle laid down therein therefore cannot have application to a case of the present nature, where termination from service is held to be illegal – writ petition is therefore allowed
Aggrieved by the Award dated 01.10.2001 passed by the Labour Court-III, Hyderabad, in I.D.No.85 of 2000, to the extent it denied him backwages with all benefits for the period that he remained out of employment, the petitioner-workman is before this Court. He seeks a consequential direction to the Andhra Pradesh State Road Transport Corporation (APSRTC) to reinstate him in service as a Driver with continuity of service with full backwages and all other consequential benefits.
The petitioner-workman was a Driver in the service of the APSRTC. His services were regularized in the year 1992. He was removed from service by order dated 03.10.1997 on the following charges.
1. “For having absented for duty unauthorisedly from 1-5-1997 till date, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees (conduct) Reg.1963”.
2. “For repeated irregular attendance causing cancellation of services, inconvenience to the traveling Public, besides loss of revenue to the corporation, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees (conduct) Reg.1963”.
Aggrieved by his removal from service, he invoked the jurisdiction of the Labour Court under Section 2-A(2) of the Industrial Disputes Act, 1947. Upon consideration of the material placed before it, the Labour Court held that the charges leveled against the petitioner-workman were not established. Consequently, the removal order passed against him was set aside. Significantly, during the course of arguments before the Labour Court, the petitioner-workman endorsed that he was not pressing his claim for backwages. It was on this ground that the Labour Court denied him such relief and directed his reinstatement in service with continuity of service.
The APSRTC did not assail the said Award to the extent it granted relief to the petitioner-workman. Therefore, the only question that falls for consideration is whether denial of full backwages with all other benefits for the period that the petitioner-workman remained out of employment, was justified.
Perusal of the Award demonstrates that the Labour Court gave the petitioner-workman a clean chit as regards the two charges framed against him. His removal from service was therefore held to be erroneous in its very inception.
Sri S.M.Subhan, learned counsel for the petitioner-workman, placed reliance on DEEPALI GUNDU SURWASE V/s. KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA (D.ED.) [(2013) 10 SCC 324] in support of his contention that once the order of removal is held to be unsustainable, full back wages should be awarded.
No doubt, in the aforestated judgment, the Supreme Court held that in a case involving wrongful termination from service, denial of back wages to an employee who has already suffered due to the illegal act of the employer would amount to indirectly punishing such an employee and rewarding the employer by relieving him of the obligation to pay back wages and emoluments. However, in the present case, it is not disputed that the petitioner-workman himself gave up his claim for back wages before the Labour Court. Once he voluntarily chose not to press for the said relief, this Court finds no irregularity or illegality in the Labour Court accepting such waiver and denying him that relief. The petitioner-workman cannot be permitted to approbate and reprobate.
In so far as the issue of denial of other benefits is concerned, the Labour Court granted the petitioner-workman continuity of service. The law laid down by the Supreme Court in J.K.SYNTHETICS LTD. V/s. K.P.AGRAWAL [(2007) 2 SCC 433] was to the effect that on a mere direction for reinstatement, a workman could not claim continuity of service as of right or as a matter of course. In DEEPALI GUNDU SURWASE1, this was held to be contrary to the ratio laid down by a three Judge bench of the Supreme Court in HINDUSTAN TIN WORKS (P) LTD. V/s. EMPLOYEES [(1979) 2 SCC 80]. Thus, as per the present legal position, continuity of service can be claimed by a workman as a matter
