Partly allowed

T.v.v.S.Narayana, v. The Labour Court

Andhra Pradesh HC29 Dec 2024WP/5701/2019

Case brief

AI extract

What is this about?

High Court allowed petitioner driver's Writ Petition regarding back wages. Court held that despite acquittal in criminal case, departmental punishment was valid on preponderance of probabilities. Back wages granted as incidental benefit since employer failed to prove alternative employment, considering petitioner's long service and family hardship.

What did the court decide?

Petitioner directed to receive back wages with interest at 12% per annum; no order on costs.

T.v.v.S.Narayana, Vs The Labour Court — Pension and Retirement Benefits | Andhra Pradesh HC (2024)

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A ¥

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction)

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. D

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MONDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON’BLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA

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WRIT PETITION NO: 5701 OF 2019

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Between:

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T.V.V.S.Narayana, S/o.Buchi Raju, Aged about 56 years, OccDriver in APSRTC R/o.Nandamuri Colony, Narsapur, West Godavari^{District,A.P.}

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...PETITIONER

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AND

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The Labour Court, Rep. by its Presiding Officer, Guntur, Guntur District, A.P.

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The Andhra Pradesh Road Transport Corporation (APSRTC), Rep. by its Vice Chairman and Managing Director, Pandit Nehru Bus Station, Vijayawada, Krishna District, A.P.

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The Regional Manager, APSRTC., Eluru, West Godavari^{District,A.J.}

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The Depot Manager, APSRTC, Narsapuram Depot, Narsapuram,^West Godavari District, A.P.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ mandamus, declaring the Award dt.31.05.2018, in I D.No.28/2011 on the file of the 1st Respondent Court,^insofaras it relates to denial of back wages, attendant benefits, interest and costs^only, as arbitrary, violative of Articles 14 and 21 of the Constitution of India and provisions of I.D.Act, consequently modify the same and direct the

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Respondents 2 to 4 to pay back wages, attendant benefits^{withinterestat} 4% the rate of 12 % p.a. and grant of costs of Proceedings.

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lA NO:1 OF 2019

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents 2 to 4 to fix the pay of the petitioner by adding increments notionally that fell due from the^{dateofremoval} till the date of reinstatement, immediately, pending disposal of writ petition.

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Counsel for the Petitioner: SRI M PITCHAIAH

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Counsel for the Respondent No.1: GP FOR LABOUR

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Counsel for the Respondent Nos. 2 to 4: SRI VINOD KUMAR TARLADA (SC FOR APSRTC)

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The Court made the following: ORDER

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APHC010130332019

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3396]

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(Special Original Jurisdiction)

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MONDAY, THE THIRTIETH. DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA WRIT PETITION No. 5701 of 2019

Between:

T.V.V.S.Narayana,

...PETITIONER

AND

The Labour Court and Others ...RESPONDENT(S) Counsel for the Petitioner:

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1.MPITCHAIAH

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Counsel for the Respondent(S):

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1.VINOD KUMAR TARLADA (SC FOR APSRTC)

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2.GP FOR LABOUR (AP)

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The Court made the following:

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ORDER:

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The Petitioner, who is the Driver working in Respondent’s Corporation of the i.e.. APSRTC seeking indulgence of this Court under Article²²⁶ Constitution of India by way of Writ of Mandamus declaring^{theAward,dated} 31.05.2018 passed in ID No.238 of 2011 by the respondent^No.1/Labour Court to the extent of denial of back-wages, attendant^{benefits, interest and} costs as illegal, arbitrary, violative of Articles^{14and21oftheConstitutionof} India and consequently, modify the same directing the^{respondents2to4to} pay back wages, attendant benefits with interest @^12%perannum.

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Heard Sri M.Pitchaiah, learned counsel for the Petitioner and Sri Vinod Kumar Tarlada, learned Standing Counsel appearing for Respondents 2 to 4. Perused the material on record.

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Learned counsel for the Petitioner would submit that the Petitioner was appointed as Driver in APSRTC in the year 1998. On 14.10.2007, Respondent No.4 issued a charge sheet alleging that he drove the vehicle with lack of anticipation and did not take any precautionary measures, which is a serious misconduct under Regulation 28 of APSRTC Employees (Conduct) Regulations, 1963. Learned counsel would submit that a domestic enquiry was initiated by the respondent authorities and having not satisfied with the explanation given by the Petitioner, removed the Petitioner from service. Learned counsel further submits that the appeal and the review preferred by the Petitioner to the Respondent-Authorities were rejected. Petitioner raised an Industrial Dispute before the respondent No.l/Labour Court vide ID No.28 of 2011 challenging his removal from service and the impugned Award dated 31.05.2018 has been passed by respondent No.1 partly allowing the claim of the Petitioner and directed the respondent authorities to reinstate the Petitioner into service with continuity of service but without back-wages and attendant benefits.' Accordingly, Petitioner was reinstated into service. Learned counsel further submits that the Criminal Case lodged against the Petitioner for the offences punishable under Sections 337 and 338 IPC was ended- in acquittal, Learned counsel would further submit that the charge framed against the Petitioner reads as under;

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“ For having driven the vehicle No.AP 11 2 4080 with^lackof anticipation and not taken any precautionary measures even though the Bus is going on the NH5 where the roads are having 04 lines, the vehicle reached Adda Roads junction on 14.10.07 at^{about1.00hrs.} The vehicle hit the iron pole, resulting in the breakage of spring blades and the bus fallen to the left side road margin in a depth of about of 10 ft. and the vehicle titled upside down, while you were performing duty on the route Visakhapatnam-narsapur on 14.10.07 which constitutes serious misconduct under Reg.28(ix)(a) and (b) ofAPSRTC Employees Conduct Regulations 1963.

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4 Learned counsel submits that the charge framed against^{thePetitioner} is that lack of anticipation but not driving the vehicle in a rash and negligent manner. Learned counsel would submit that acquittal of the Petitioner in criminal case on merits would prevail over the departmental enquiry. The punishment which is awarded is disproportionate. Learned counsel would further submit that in departmental enquiry, the passengers,^{whosaidtohave} given statements and relied upon by the Preliminary Enquiry Officer are not present during the Domestic Enquiry. Hence, the said^{statementscannotbe} taken into consideration. The punishment was awarded to the petitioner is contrary to the governing law and regulations. Learned counsel would finally submit that no reasons were assigned by respondent^{No. 1/LabourCourtfor} denying the back-wages and attendant benefits to the Petitioner while directing the authorities to reinstate the Petitioner into service with continuity of service. 5. Per contra, learned Standing Counsel appearing for Respondents 2 to 4 would submit that the accident occurred while Petitioner was driving the vehicle. When there is no work, department need not pay. Learned counsel would submit that the passengers, who suffered injuries, filed their claims

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seeking compensation before the Motor Accidents Claims^{Tribunal.Learned} counsel would finally submit that this Court cannot^{interferewiththeAward} passed by the Labour Court touching the factual aspects unless it is perverse and illegal.

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Now the point that would emerge for determination is:

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Whether the Petitioner is entitled for hack wages and^{attendantbenefits} with interest and costs?

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The fact remains that the Petitioner worked as Driver in Respondent’s Corporation. While so, on the date of accident, when the Petitioner was driving the bus, it met with an accident, which resulted in serious injuries to three passengers. The bus was damaged extensively. Petitioner was subjected to disciplinary enquiry. On conclusion of enquiry, he was^{removedfromservice.} On the other hand, he was also prosecuted for the offences punishable under Sections, 337 and 338 IPC, However, the criminal case was ended in acquittal. Petitioner challenged the order of removal before the appellate authority and it was dismissed. He carried the matter to higher authorities for Review, which was also rejected. Thereafter, Petitioner challenged the Order of removal before the Respondent No. 1/Labour Court. The Presiding Officer considered the acquittal of the Petitioner/accused in criminal proceedings and observed that except the Petitioner, none stated before the enquiry authority that one lorry tried to over take the bus to avert a big calamity. The driver has taken extreme left resulting hit to the iron pole.

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'to 8. As can be seen from the impugned order, learned Presiding Officer opined that the punishment of removal from service is disproportionate to the alleged misconduct. The Tribunal never stated that there is no contribution from the side of the Petitioner for causing the alleged accident, which resulted serious injuries to the passengers and extensive damage to the bus. The Presiding Officer categorically observed that there is no fault on the part of the enquiry authority to come to the conclusion that the Petitioner is guilty of the charge framed against him. As can be seen from the charge, the charge is to the effect that due to lack of anticipation and lack of precautionary measures while driving the bus, the accident occurred, which is misconduct on the part of the Petitioner.

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A fair look at the Judgment dated 31.03.2011 passed^inCCNo.742of 2007 on the file of the Court of Judicial First Class Magistrate, Yellamanchilli, the prosecution has failed to examine any eye witnesses to the occurrence, that is how the case was ended in acquittal and thereby, the prosecution has failed to prove the guilt of the accused for the offences punishable under Sections 337 and 338 IPC. There is no force in the argument of learned counsel for Petitioner that since the criminal case was ended in acquittal initiating departmental proceedings on the very same^{setoffactsisbadinlaw.}

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The Hon’ble Apex Court in Samar Bahadur Singh V. State^ofU.P.& Ors^ held as under:

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“11. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings^{asthestandardof}

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(2011)9 see 94

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proof in both the cases are totally different. In a^{criminalcase,} the prosecution has to prove the criminal case beyond all^{reasonabledoubt} whereas in a departmental proceedings, the department^hastoprove only preponderance of probabilities. In the present^{case,wefindthatthe} department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be^{withoutanymerit.} There is no observation that the respondent corporation^{falselyimplicated} the Petitioner and removed from service with false^{reasons.’’}

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In the impugned order reinstating the Petitioner into^{serviceisordered} with continuity of service without back-wages. It is^{pertinenttomentionthat} on re-appreciating the entire evidence on record including^{theJudgmentof} acquittal of the Petitioner by the Criminal Court,^{RespondentNo. 1/Labour} Court did not choose to interfere with the finding^{recordedbytheenquiry} authority on the misconduct proved, but interfered^{withtheorderofremoval} solely on the ground that punishment of removal is^{disproportionatetothe} misconduct proved.,

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Learned Presiding Officer considered the order of acquittal^passedby the Criminal Court, but did not agree with the argument^on behalf of the Petitioner that since he was acquitted by the Criminal^{Court,hecannotbe} held guilty by the disciplinary authority. Obviously,^{thecasewasended} in acquittal for different reasons as prosecution failed to produce the eye witnesses to the occurrence of the accident before the Court. The impugned order is vivid to the effect that respondent No. 1/Labour^{Courtdidnotinterfere} with the findings recorded by the inquiry officer in the departmental

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Needless to mention, back wages can be granted as a proceedings, consequential benefit by way of compensation, in a^{casewheredirectionto} reinstatement is not possible to be given. 13. No dOubt, Petitioner has claimed back-wages before^{therespondent} No. 1/Labour Court. Claim petition is placed before^{thisCourttoobservethat} he has taken specific plea that he remained unemployed^{duringtheperiod} from his dismissal till the date of his reinstatement.^{Thereasonbeing,the} Petitioner was removed from service in the year 2007^{andhewasreinstated} into service in 2018, but no contra material has been^{placedtoshowthatthe} Petitioner was gainfully employed during the interregnum^period. It is the obligation on the part of the employer to establish^{gainfulemploymentofthe} employee during such period. Employer maintained silence^{onthisaspect.} The employer has not furnished any particulars in this^{regardevenbeforethis} Court. The employee could have been asked to furnish the necessary information at the earliest stage. The employer has not resorted to that The course. The employee was not expected to prove the negative. judgment of the Hon’ble Apex Court in Shambu Nath Goyal vs. Bank of Baroda and Others'^ relied on by the learned counsel^{forthePetitioneris} squarely applicable to the present set of facts. 14. It is the obligation on the part of the employer to^{establishgainful} employment of the employee during such period, and it would also be necessary for the employee to disclose the efforts made by him^togetsome other job or employment during such period as well^{asaboutthesourceof}

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CDJ 1983 SC 044

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income during the said period and if so, to what extent. However, it cannot be forgotten that the order for payment of back wages^{hasto'befromthepointof} view of compensating the employee for the loss suffered^{duringthetimehe} was out of the employment and not a reward for having succeeded in establishing the action of termination of the service^bythe employer^tobe illegal. 15. For the purpose of granting back wages, the conduct^{oftheconcerned} employee also plays a vital role. In the case on hand,^{ascanbeseenfrom} the claim statement submitted by the Petitioner, he had served the Corporation for more than 19 years without any remarks and that the Petitioner is the only earning member of his family and ever since his termination, the Petitioner has not been able to find alternative employment. due to which, his entire family members have been facing^severe financial hardship. In such circumstances, this Court is of the^{viewthatthePetitioneris} entitled for back wages since he remained unemployed during the relevant period.

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Accordingly, the Writ Petition is allowed to the extent of back wages. There shall be no order as to costs.

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Pending applications, if any, shall stand closed.

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Sd/- K.J.RAJA BABU //TRUE COPY// ASSISTANT REGISTRAR

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To,

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SECTION OFFICER

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The Presiding Officer, Labour Court, Guntur, Guntur District, A.P. 2. The Vice Chairman and Managing Director, Andhra Pradesh Road Transport Corporation (APSRTC), Pandit Nehru Bus Station Vijayawada, Krishna District, A.P.

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