Contributory negligence and continuous pursuit of rights can influence the award of backwages after reinstatement in an employment dispute.

JUDGMENT :

D.V.S.S.SOMAYAJULU, J.

W.A.No.1296 of 2011 is filed by the A.P. State Road Transport Corporation questioning the order dated 27.01.2011 in W.P.No.1671 of 2004, by which learned single Judge allowed the writ petition reviewing the order passed by the Labour Court in I.D.No.259 of 2000 and came to the conclusion that total denial of backwages to the writ petitioner is not correct and directed the respondent to pay 1/4th of the backwages, this Writ Appeal was filed.

2) W.A.No.855 of 2012 is filed by the workman–writ petitioner questioning the very same order. It is the submission of the learned counsel that once the reinstatement was ordered the petitioner was entitled to the entire back wages and that awarding ¼ back wages in these circumstances is incorrect.

3) The facts in these cases are as follows: The writ petitioner was employed as a driver in the APSRTC. While he was driving a bus in September, 1999 a fatal accident occurred as the bus was involved in a head on collision with a van. The driver of the van and two other occupants died in the accident. The petitioner was prosecuted in the criminal court. Apart from that disciplinary action was also initiated. The prosecution ended in an acquittal. As far as the disciplinary action is concerned based on the finding of guilt he was dismissed from service. Therefore, he filed I.D.No.259 of 2000 claiming reinstatement with continuity of service etc. The Labour Court after examining the matter came to the conclusion that punishment awarded was disproportionate and that the van driver was also responsible for the accident. Therefore, the Labour Court set aside the punishment and directed the reinstatement into service with continuity of service but without backwages. Against the same, W.P.No.1671 of 2004 was filed. The Learned single Judge came to the conclusion that total denial of backwages was not correct and therefore directed the respondent to pay 1/4th of the backwages.

4) Questioning this order, W.A.No.1296 of 2011 was filed by the APSRTC and W.A.No.855 of 2012 was filed by the Workmen.

5) Sri K. Rathanga Pani Reddy, learned counsel for the workmen argues that the criminal case filed for rash and negligent act was ended in acquittal. In the course of the inquiry, as noted by I.D. Court it was also felt that the driver alone was not responsible for the accident and that the bus driver of the van involved in the accident also contributed to the cause. He draws the attention of this Court to the findings of the Labour Court and argues that the Writ Petitioner was driving up a gradient road, that there were ditches on the left side of the road and that the van was also coming on the wrong side and therefore the accident occurred. It is his contention that both the Labour Court and the Criminal Court did not find the petitioner guilty and therefore, apart from reinstatement of service with continuity he is also entitled to complete backwages.

6) Learned standing counsel for the APSRTC on the other hand opposes the prayer and states that the reinstatement along with back wages is not a matter of right and it depends on the facts and circumstances of each case. It is argued that unless and until it is proved that the writ petitioner was not gainfully employed; this Court cannot grant back wages as prayed for. Even the 1/4th that was ordered is contrary to law according to the learned standing counsel. Hence the appeal filed by them.

7) After considering the submissions made, this Court notices that the facts are not in dispute. The Criminal case against the driver-writ petitioner ended in acquittal. The findings in the Disciplinary enquiry were also set aside by the Tribunal holding that the punishment imposed was excessive in the facts and circumstances of the case. Contributory negligence is also borne out by the record and in particular the order of the Labour Court. While it is a fact that the backwages are not automatically awarded, the question would be whether the learne