Andhra
Pradesh State Road Transport Corporation & Ors Vs. Abdul Kareem [2005] Insc
380 (2 August 2005)
Arijit
Pasayat & H.K. Sema
WITH CIVIL
APPEAL NO. 37/2005 D. Shanker Appellant Versus A.P.S.R.T.C., Nizamabad Region Respondent
H.K.SEMA, J
These
two appeals arise out of a common question of law and fact and they are being
disposed of by this common judgment. Civil Appeal No. 7797 of 2003 is preferred
by the Andhra Pradesh State Road Transport Corporation (A.P.S.R.T.C.) and Civil
Appeal No. 37 of 2005 is preferred by the workman - D. Shanker.
In
Civil Appeal No. 7797 of 2003, preferred by the A.P.S.R.T.C., the facts are as
follows: - The respondent was appointed as Retainer Conductor under the
appellant-Corporation in the year 1970. He was subsequently removed from the
service in 1971. However, he was again appointed as Conductor on 12.06.1972. He
secured a subsequent appointment without disclosing that he worked as a
Conductor earlier under the department. When it came to the knowledge of the
appellant that the workman had worked as a Conductor at Karimnagar Depot
earlier and was removed from the service, a proceeding was initiated against
him and he was removed from service on 01.05.1975. Respondent raised an
Industrial Dispute before the Labour Court
assailing the order of his removal from service. It may be noted that the
dispute was raised at a belated stage in the year 1988. The Labour Court by an Award dated 28.12.1992 came
to the conclusion that the dismissal of the respondent from service cannot be
sustained and the Court directed the respondent be reinstated into service
without back wages. It may be noted that the workman did not challenge the
order of the Labour
Court directing to
reinstate him into service without back wages. Pursuant to the order of the Labour Court, the workman was reinstated on
28.05.1993.
Thereafter,
the appellant passed an order dated 17.05.2000 stating that the respondent
would not be eligible for notional increments from the date of his removal from
service. Being aggrieved, respondent preferred Writ Petition before the High
Court of Andhra Pradesh assailing the order dated 17.05.2000. In the said Writ
Petition the respondent inter alia prayed for granting of notional increments
for the period from 01.05.1975 to 10.06.1993. Learned Single Judge, following
the earlier decision of the Division Bench of High Court in Corporation that
the pay of the respondent should be fixed by taking into consideration the
notional increments. Aggrieved thereby, the appellant preferred a Writ Appeal
No. 1209 of 2002 without any result.
Hence
the present petition.
In
Civil Appeal No. 37 of 2005 preferred by the workman D. Shanker, the facts are
as follows: - The workman joined the Corporation as a Conductor in 1972 and on
16.03.1972 a disciplinary proceeding was initiated against him for not having
collected an alleged amount of Rs. 1.20 paisa between two stages. Pursuant to
the proceeding initiated against him he was removed from service on 24.08.1972.
He raised an Industrial Dispute before the Labour Court and the Labour Court
by its Award dated 24.11.1992 held that dismissal of the workman is
disproportionate to the gravity of offence/charge and directed the
reinstatement of the workman into service by maintaining continuity of service but
without back wages. Petitioner was reinstated on 08.06.1993 as a fresh
appointee without any increment in his salary. The representation of the
petitioner was rejected by the Corporation. Thereafter, he filed a Writ
Petition, which was allowed by the Learned Single Judge on 6.11.2002 holding
that he is entitled for grant of notional increments.
Aggrieved
thereby, the Corporation filed Writ Appeal before the Division Bench which was
allowed by the order dated 07.08.2003 on the ground that the point of law is
well settled by the judgment of this Court.
The
question that revolves around for determination is, whether Labour Court's
Award of reinstatement without back wages would imply continuity of service and
whether notional increments are to be given to the employee for the period for
which he was not in service, in absence of specific direction in that regard?
At this stage, we may notice the operative portion of the Award of the Labour Court in Para 4 of its Award, which reads as under:
".the
dismissal of the petitioner from service cannot be sustained and he has to be
reinstated but without back wages." We have heard learned counsel for the
parties.
It is
contended by the counsel for the appellant that it is a well established
principle in Labour Industrial Law that upon setting aside an order of
termination, the workman is reinstated as if the contract of employment
originally entered into had been continued. The counsel further contended that
in such cases the terms and conditions of the contract which was obtained when
the workman was in the employment of the employer prior to his wrongful
dismissal which has been set aside continue to govern the relationships between
the parties and the workman continues to be in the employment of the employer in
the terms and conditions of the contract. According to counsel denial of
consequential relief is in exception, unless such denial was being specifically
spelt-out, otherwise, the natural and consequential relief must follow. Counsel
would further contend that in the given facts, this would be competent enough
to mould the relief as the workman was reinstated after more than a decade.
In our
considered opinion, the argument advanced by the counsel is not tenable in law
in the view taken by this Court in the recent Narsagoud Respondent (2003)2 SCC
212, this Court had occasion to deal with the identical controversy and
succinctly crystallized the point of law. In that case the respondent was a
Conductor in the employment of appellant - A.P.S.R.T.C. He remained absent from
duty between 05.06.1982 and 08.08.1982 and again between 13.10.1992 and
01.11.1992. A departmental inquiry was initiated against him on the charges of
unauthorized absence which ended in the punishment of removal from service and
a dispute was raised before the Labour Court. The Labour
Court upheld the
departmental enquiry and the findings arrived thereat, but the respondent was
directed to be reinstated with continuity of service but without back-wages.
The Learned Single Judge, on being approached by the respondent, directed the
appellant to fix the wages payable to him on his reinstatement by taking into
account the increments that he would have earned had he been in service during
the period of absence from duty. This finding of the Learned Single Judge was
affirmed in an appeal by the Division Bench. This Court allowed the appeal
preferred by the A.P.S.R.T.C.
The principle
of law on point are no more res integra. This Court in S. Narsagoud (supra) succinctly crystallized
principle of law in Paragraph 9 of the judgment on Page SCC 215:
"We
find merit in the submission so made. There is a difference between an order of
reinstatement accompanied by a simple direction for continuity of service and a
direction where reinstatement is accompanied by a specific direction that the
employee shall be entitled to all the consequential benefits, which necessarily
flow from reinstatement or accompanied by a specific direction that the
employee shall be entitled to the benefit of the increments earned during the
period of absence. In our opinion, the employee after having been held guilty
of unauthorized absence from duty cannot claim the benefit of increments
notionally earned during the period of unauthorized absence in the absence of a
specific direction in that regard and merely because he has been directed to be
reinstated with the benefit of continuity in service." Reverting to the
facts of the case at hand, as already noticed, the Labour Court specifically directed that the
reinstatement would be without back wages. There is no specific direction that
the employee would be entitled to all the consequential benefits. Therefore, in
the absence of specific direction in that regard, merely because an employee
has been directed to be reinstated without back wages, he could claim a benefit
of increments notionally earned during the period when he was not on duty or
during the period when he was out of service. It would be incongruous to
suggest that an employee, having been held guilty and remained absent from duty
for a long time, continues to earn increments though there is no payment of
wages for the period of absence.
In
view of what has been stated above, both the Learned Single Judge and Division
Bench had erred in law in allowing the benefit of increments notionally to the
employee during the period when he was out of service. Both the orders in C.A.
No. 7797 of 2003 are set aside.
The
net result is Civil Appeal No. 7797 of 2003 preferred by A.P.S.R.T.C. and Ors. is
allowed and Civil Appeal No. 37 of 2005 preferred by D. Shanker is dismissed.
Parties are asked to bear their own costs.
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