Andhra HC (Pre-Telangana)
P. Ramesh Babu vs Andhra Pradesh State Road Transport ... on 21 December, 1993
Equivalent citations: 1994(1)ALT111, (1994)IILLJ943AP
ORDER S. Parvatha Rao, J.
1. The petitioner questions the award of the Additional Industrial Tribunal-cum-Additional Labour Court at Hyderabad (the second respondent herein) in Industrial Disputes No. 802 of 1987, dated 31-5-1988 in so far as it is against the petitioner and seeks a direction of the first respondent i.e., Andhra Pradesh State Road Transport Corporation to reinstate him with effect from 28-10-1970 without any break in service and to pay all back wages from that date till the date of reinstatement and also to give him the attendant benefits.
2. The petitioner joined as a Driver in the first respondent corporation in the year 1970 and his services were regularised in the year 1971. He states that he could not attend to duty from 24-1-1980 due to illness and that he applied for leave which was initially granted. According to him the first respondent terminated his services with effect from 22-4-1980 by invoking Regulation 39(3) of the Andhra Pradesh State Road Transport Corporation Employees (Leave) Regulations. He states that during the period of his absence from duty he was not gainfully employed and that his absence from duty was because of break down in his health due to renal failure. According to him, his illness was prolonged and during that period he was in his village only. After he regained his health he raised an industrial dispute under sub-section (2) of Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') before the second respondent which was numbered as I. D. No. 802 of 1987. As per the award dated 31-5-1988 of the second respondent in the said industrial dispute the first respondent was directed to immediately reinstate the petitioner into service but only as a fresh Driver not later than a month from the date on which the management receives a written request from the petitioner seeking reinstatement. It is not in dispute that pursuant to the said award the petitioner was reinstated as per the said award. The petitioner is aggrieved that he was directed to be reinstated without continuity of service and without back wages and attendant benefits.
3. In the counter affidavit filed on behalf of the first respondent it is stated that the petitioner was working only as temporary Driver in the first respondent corporation and that he was removed from service with effect from 22-4-1980 under the said Regulation 39(3) on the ground of unauthorised absence. It is further stated that the petitioner sought for and obtained leave for ten days from 9-1-1980 to 18-1-1980 and that thereafter he remained absent without obtaining any further leave and that after seven years he reported in November, 1987. It is further stated that the contention of the petitioner that due to prolonged illness he had not reported to duty is not correct. It is stated that the telegram sent by the petitioner for extension of leave did not make any mention about his ill-health and that the petitioner was advised by a letter dated 6-2-1980 to report to duty. The petitioner did not report to duty or present himself to the Chief Medical Officer, A. P. S. R. T. C. Hospital or submitted any medical certificate as undergoing treatment. In the circumstances, the first respondent contends that the removal from service with effect from 22-4-1980 was valid and that the Labour Court rightly held that there was no justification at all for the absence of the petitioner. It is also submitted on behalf of the first respondent that there were laches on the part of the petitioner and that he did not care to report to duty for about seven years and that he approached for re-employment on 9-11-1987. It is also submitted that because of the considerable service put in by the petitioner as driver he was directed to be reinstated by the second respondent and the first respondent accepted the award and reinstated the petitioner as per the award. As the petitioner himself was responsible for his removal, it is contended that he will not be entitled to any back wages or continuity of service.
4. The learned Counsel for the petitioner contends that removal from service without an enquiry and without an opportunity to the petitioner is opposed to the principles of natural justice and the order of the first respondent removing the petitioner is therefore honest. Under the circumstances, the removal of the petitioner amounts to retrenchment as the said expression is defined under Section 2(00) of the Act and as the petitioner was retrenched in violation of the provisions of Section 25-F of the Act, he is entitled to be reinstated with full continuity of service and full back wages and other benefits. The learned Counsel also submits that in Industrial Dispute No. 345 of 1987 and batch the second respondent passed an award dated 28-5-1988, a few days prior to the impugned award, directing immediate reinstatement of the petitioners in those industrial disputes with continuity of service but without back wages and without any attendant benefits, after referring to the judgment of the Supreme Court in Robert D'Souza v. Executive Engineer, Southern Railway, AIR 1982 SC 854. The learned Counsel also relies on the judgment of the Supreme Court in Des Raj Gupta v. Industrial Tribunal IV, U. P., Lucknow, 1991 I CLR 332, wherein after referring to the earlier decisions of the Supreme Court in Gujarat Steel Tubes Ltd., v. Gujarat Steel Tubes Mazdoor Sabha, , it has been held :
"That if the order of punishment passed by the management is declared illegal and the punishment is upheld subsequently by a labour Tribunal, the date of dismissal cannot relate back to the date of the illegal order of the employer".
In that case the Supreme Court awarded to the workman salary from 16-8-1976 (i.e., the date of dismissal) to 20-7-1980 (the date of the award in that case).
5. It is not necessary to multiply the decisions in view of the recent judgment of the Supreme Court in D. K. Yadav v. J. M. A. Industries Ltd. 1993 II CLR 116 in which after reviewing the earlier decisions of the Supreme Court it has been held as follows :
"The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put-forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D. T. C. v. D. T. C. Mazdoor Congress (1991 Supp. (1) SCC 600) the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside".
In that case the services of the appellant before the Supreme Court were terminated on the ground that he wilfully absented from duty continuously for more than eight days without leave or prior information of intimation or previous permission from the management and, therefore, was "deemed to have left the service of the company on your own account and lost your lien and the appointment with effect from December 3, 1980."
On the basis of Clause 13(2) (iv) of the Certified Standing Order of the Company, and the said order of termination was upheld by the Labour Court, Haryana, at Faridabad by its award as legal and valid holding that the said termination was in accordance with the standing orders and that it was not a termination or retrenchment under the Act. The Supreme Court has held that the principles of natural justice are violated as the management did not conduct any domestic enquiry nor gave the appellant any opportunity to put forth his case and set aside the award of the Labour Court and quashed the order of removal of the management. However the Supreme Court has observed that the appellant was also equally to be blamed and in the result directed reinstatement of the appellant with back wages. Incidentally the Supreme Court has observed in D. K. Yadav's case (supra) that it has found force in the contention "that the definition 'retrenchment' in Section 2(OO) is a comprehensive one intended to cover any action of the management to put an end to the employment of an employee for any reason whatsoever."
but, however, has decided that case on the other ground that the principles of natural justice were violated.
6. The learned Counsel for the petitioner also relied on the judgment of a learned single Judge of Punjab and Haryana High Court in Har Prem Kumar Single v. Presiding Officer & Anr. 1991 (8) SLR 724. In that case also the employee remained absent from duty for certain period without leave on account of which his services were terminated. That was questioned by the workman before the Labour Court, Patiala and the Labour Court passed an award setting aside the order of termination as being non est in law and directed reinstatement of the employee with continuity of service but allowed 25% of the back wages. That was questioned by the employee by way of a writ petition before the Punjab and Haryana High Court claiming full back wages. That writ petition was allowed and a direction was issued to the employer to pay full back wages due to the employee.
7. In the present case the second respondent has directed only reinstatement of the petitioner into service as a fresh drive. In view of the decisions of the Supreme Court in Desh Raj Gupta's case (supra) and D. K. Yadav's case (supra) the order of removal of the petitioner from service is clearly unsustainable and is non est. But the 2nd respondent found as a fact that the petitioner could not substantiate his stand that he was ill and therefore could not report to duty. The facts clearly disclose that the petitioner was asked to report to the Civil Surgeon of A. P. S. R. T. C. Hospital at Tarnaka which he failed to do. The petitioner initially asked only for ten days leave from 9-1-1980 and even in the telegram he sought extension of leave only upto 23-3-1980. The first respondent addressed a letter to the petitioner to report to duty or to the Civil Surgeon of A. P. S. R. T. C. Hospital at Tarnaka but the petitioner failed to do either. The first respondent addressed another letter by registered post to the petitioner which was returned and thereafter the removal order was also sought to be served on the petitioner by a letter but that was also returned unserved. The petitioner did not adduce any evidence before the second respondent as regards his illness. Unlike the appellant before the Supreme Court in D. K. Yadav's case (supra), the petitioner did not knock at the door of the first respondent till November, 1987 and approached the Labour Court only on 27-11-1987 after a long silence. In the facts and circumstances of the present case, therefore, I am of the view that there can be no justification for granting back wages to the petitioner at any rate till he approached the second respondent event treating the order of the 1st respondent terminating the services of the petitioners with effect from 22-4-1980 as non est because principles of natural justice were violated and no opportunity was given to the petitioner.
8. However, I am inclined to grant the petitioner half of the back wages from 27-11-1987, the date when he presented the petition before the second respondent till the date of his reinstatement because, as held by the Supreme Court in Desh Raj Gupta's case (supra) when the order of punishment passed by the 1st respondent is non est for violating the principles of natural justice, any punishment justified or imposed by the second respondent cannot relate back to the date of the non est order. When an order of removal is set aside, the moral rule is to grant full back wages unless there are exceptional circumstances warranting denial of back wages. Because the petitioner approached the second respondent for redress after a long delay of eight and half years, I do not find any justification for granting back wages to the petitioner for the period commencing from the date of termination of his services by the 1st respondent till he approached the 2nd respondent. For the subsequent period i.e., from 27-11-1987 till the date of reinstatement, the petitioner can have only half of the wages calculated on the basis of his last drawn pay, because absence without leave and without good reason was found to have been established by the second respondent and the petitioner had kept himself away and out of reach of the 1st respondent thus prompting the termination.
9. In the result the 1st respondent is directed to pay to the petitioner half of the back wages from 27-11-1987 till the date of his reinstatement calculated on the basis of his last drawn monthly pay in the year 1980. The payment shall be made within 3 months from today. The petitioner shall also have continuity of service but without any attendant benefits. He shall be started on the pay he was drawing on the date of his removal with all the subsequent revisions effected by the 1st respondent. The award of the 2nd respondent in I. D. No. 802 of 1987 dated 31-5-1988 shall stand modified accordingly and the Writ Petition is allowed to that extent. No order as to costs.