The Depot Manager
A.P.S.R.T.C Vs. P. Jayaram Reddy [2008] INSC 2234 (18 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELALTE JURISDICTION CIVIL APPEAL NO. 7406 OF 2008 [Arising
out of Special Leave Petition (Civil) No. 8535 of 2007] THE DEPOT MANAGER
A.P.S.R.T.C. ..... APPELLANT Versus
S.B. SINHA, J.
1.
Leave
granted.
2.
Appellant
is before us aggrieved by and dissatisfied with a judgment and order dated
30.9.2005 passed by a Division Bench of the High Court of Judicature of Andhra
Pradesh at Hyderabad in Writ Appeal No. 2013 of 2004 affirming a judgment and
order dated 26.6.2003 passed by a learned 2 single judge of the said Court
allowing the Writ Petition filed by respondent herein challenging an award
dated 9.8.1996 passed by the Presiding Officer, Labour Court II, Hyderabad in
Industrial Dispute No. 183 of 1993 to the extent it denies the full back wages
to the respondent.
3.
The
admitted fact of the matter is as under:
Respondent was
appointed as a conductor of Siddipet Depot on casual basis. He was removed from
service by an order dated 8.9.1987 for alleged commission of a misconduct
relating to sale of tickets and other irregularities in respect thereof.
However, a notification in the mean time was issued notifying 300 vacancies of
conductors on 2.9.1987. The last date for filing an application for appointment
pursuant thereto was fixed as 14.9.1987. He applied for the said post and
eventually appointed by the appellant for its Zaheerabad Depot which is said to
be 200 kilometers away from Siddipet Depot.
4.
Indisputably,
respondent did not disclose that he had earlier been removed from service on
the charges of misconduct. His services were also regularized. However, later
on the Corporation came to learn that the respondent had concealed the fact as
regards his previous employment with it and his removal therefrom. A charge
sheet was issued. Pursuant thereto, a departmental proceeding was initiated. In
the said departmental proceeding, he was found guilty of the charges levelled
against him. A second show cause notice was issued to which respondent showed
cause.
An order of removal
from service was issued on or about 27.4.1992. An appeal preferred thereagainst
was also dismissed by reason of order dated 20.10.1992.
5.
Respondent
filed an application before the Labour Court questioning the said order of
removal as also the appellate order in terms of Section 2-A (2) of the
Industrial Disputes Act, 1947 (for short, "the Act") praying for
setting aside the order of removal and reinstatement with all benefits of
continuity in service and back wages. One of the objections taken by appellant
before the Labour Court was that respondent had obtained 4 employment upon
concealing the facts of his previous employment. By reason of an award, the
Labour Court although opined that the disciplinary proceeding held against the
respondent was valid and proper and the principles of natural justice have been
complied with, but relying on or on the basis of a decision of the Andhra
Pradesh High Court dated 28.7.1987 that there being no column in the
application form for supply of information with regard to previous employment,
no misconduct can be said to have been committed by the employee in securing
another employment, holding:
"The contention
of the corporation that the proforma in that fashion was notified nor requiring
specifically to furnish information of the past employment of the candidate is
intended mainly for the fresh candidate but not in case of an employee who was
already removed for certain acts of misconduct committed and that the
petitioner ought to have appealed to the high officials against his removal
orders during the past employment for consideration but not to apply for
appointment as a fresh candidate, cannot be accepted as rightly that when a
particular information was asked to be furnished there was no duty and
responsibility cast on a candidate seeking for employment. On an overall
consideration of all the material made available on record this court cannot
persuaded itself to accept the contentions of the respondent and to justify the
impugned removal orders in question before us but on the other hand this Court
is satisfied that the 5 impugned punishment of removal imposed on the
petitioner is very much harsh, disproportionate and unjustified rendering
itself liable to be set aside and entitling the petitioner to be reinstated
with all benefits except with full backwages."
6.
A
writ petition was preferred there against by the respondent only contending
that the benefit of payment of full back wages was denied to him. A learned
single judge of the High Court of Judicature of Andhra Pradesh at Hyderabad
allowed the said writ petition, opining:
"The order
removing him from service having been rightly held invalid the petitioner ought
to have been granted the benefit of back wages too, for the period he was put
out of service illegally and without any jurisdiction.
On the above analysis
the order of the Labour Court in I.D. No. 103/1993 dated 9.8.1998 to the extent
it denies the full back wages to the petitioner is unsustainable and is set
aside. It is brought to my notice by Sri Sai Ram Goud, learned counsel for the
petitioner that the petitioner has obtained employment in November, 1996 soon
after pronouncement of the award in I.D. No. 103/1993 and before publication of
the award in G.O. Rt. No. 244 dated 3.2.1997 and that this fact has been
informed to the respondent corporation. It is therefore very fairly contended
by Sri Sairam Goud learned counsel for the petitioner that the entitlement of
the petitioner for 6 back wages would be only from 27.4.1992 to October 1996
the latter being the month after which he had obtained alternative and gain
employment and was therefore no longer in service of the respondent
corporation."
7.
An
intra court appeal preferred there against by the appellant, as noticed
hereinbefore, has been dismissed by reason of the impugned judgment.
8.
Ms.
Radha Rani, learned counsel appearing on behalf of the appellant would submit
that in view of the fact that the Labour Court refused to exercise its
discretionary jurisdiction in favour of the respondent in the matter of grant
of back wages, the High Court should not have interfered therewith.
9.
Mr.
R.V. Kameshwaran, learned counsel appearing on behalf of the respondent, on the
other hand, submitted that the order of removal having been passed by the
Corporation ignoring the binding precedents of the decision of the High Court
of Judicature of Andhra Pradesh at Hyderabad, no interference with the impugned
judgment is warranted.
10.
Indisputably,
the respondent was a casual employee. His services were terminated on the
charges of grave misconduct. However, he was again appointed in ignorance
thereof. It is one thing to say that the respondent had no duty to furnish
information thereabout but it is another thing to say that the order of
appointment was passed in ignorance of the fact that his services had been
terminated on the charges of grave misconduct. The Labour Court did not arrive
at a finding that the order of removal was mala fide or was made in colourable
exercise of power or amounted to victimization of the employee or at the
instance of a rival union.
11.
An
order of removal from services has some consequences. It may not bar future
employment but the nature of the order and the consequences are required to be
judged keeping in view the entire factual scenario. {see Dr. Dattatraya Mahadev
Nadkarni since deceased by His L.Rs. vs. Municipal Corporation of Greater
Bombay [(1992) 2 SCC 547].
12.
Although
on general principle, an order of removal may not bar future employment but
indisputably the same would mean causing vacation of office as a result of
misconduct or misbehaviour or any other similar cause.
In a case where an
employee occupying a position of trust is removed from the office, a loss of
confidence in him may occur. Had appellant, therefore, any knowledge
thereabout, the employee might not have been reappointed at all.
13.
The
learned Presiding Officer, Labour Court considered the entire matter. He opined
that the punishment of removal from service imposed upon the respondent was
`very much harsh, disproportionate and unjustified'. There is no finding that
the order of removal was wholly illegal and, thus, void ab initio. As noticed
hereinbefore, the validity and/or legality of the domestic enquiry was upheld.
The Labour Court in exercise of its power under Section 11A of the Act may
substitute one punishment for the other in the event it comes to the conclusion
that the quantum of punishment is disproportionate to the gravity of the
misconduct wherewith 9 the delinquent employee was charged. It is one thing to
say that the order of reinstatement with back wages is a logical corollary of a
finding that the order of termination is wholly illegal and without
jurisdiction but it is another thing to say that the punishment imposed being
very harsh and disproportionate and, therefore, was found to be unjustified.
Whereas in the former case, back wages may or may not be granted keeping in
view the facts and circumstances of the case but in the latter the labour court
may substitute one punishment for the other. The award of the labour court
belongs to the second category of cases. If that be so, the High Court was
bound to consider as to whether it should interfere with such a discretionary
jurisdiction exercised by the Labour Court. It has not been found by the High
Court that the discretionary jurisdiction exercised by the labour court was
otherwise arbitrary or perverse. It posed unto itself a wrong question, namely,
whether the respondent was in gainful employment or not and not the right
question, namely, whether the jurisdiction has lawfully been exercised or not.
The judgment and order passed by the High Court, therefore, amounted to
misdirection in law.
14.
In
P.G.I. of Medical Education & Research, Chandigarh vs. Raj Kumar [(2001) 2
SCC 54], this Court held:
"9. The Labour
Court being the final court of facts came to a conclusion that payment of 60%
wages would comply with the requirement of law. The finding of perversity or
being erroneous or not in accordance with law shall have to be recorded with
reasons in order to assail the finding of the Tribunal or the Labour Court. It
is not for the High Court to go into the factual aspects of the matter and
there is an existing limitation on the High Court to that effect. In the event,
however the finding of fact is based on any mis-appreciation of evidence that
would be deemed to be an error of law which can be corrected by a writ of
certiorari.
The law is well
settled to the effect that finding of the Labour Court cannot be challenge in a
proceeding in a writ of certiorari on the ground that the relevant and material
evidence adduced before the Labour Court was insufficient or inadequate though
however perversity of the order would warrant intervention of the High Court.
The observation, as above, stands well settled since the decision of this Court
in Syed Yakoob v. K.S. Radhakrishna [AIR 1964 SC 477]" SCC 286]}
15.
Reliance
has however been placed by the learned counsel for the respondent on a decision
of this Court in J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr. [(2007) 2 SCC
433] wherein it was held:
"20. But there
are two exceptions. The first is where the court sets aside the termination as
a consequence of employee being exonerated or being found not guilty of the
misconduct. Second is where the court reaches a conclusion that the inquiry was
held in respect of a frivolous issue or petty misconduct, as a camouflage to
get rid of the employee or victimize him, and the disproportionately excessive
punishment is a result of such scheme or intention. In such cases, the
principles relating to back-wages etc. will be the same as those applied in the
cases of an illegal termination.
21. In this case, the
Labour Court found that a charge against the employee in respect of a serious
misconduct was proved. It, however, felt that the punishment of dismissal was
not warranted and therefore, imposed a lesser punishment of withholding the two
annual increments. In such circumstances, award of back wages was neither
automatic nor consequential. In fact, back wages was not warranted at all."
Thus, the said
decision itself is an authority that grant of back wages is not automatic.
12 We may also
notice that therein this Court emphasized that the Courts or the Tribunals
while directing reinstatement are required to apply their judicial mind to the
facts and circumstances to decide whether "continuity of service"
and/or "consequential benefits" should also be directed; and as
regards back wages whether the same should be awarded fully or only partially
would depend upon the facts and circumstances of each case. The said decision
therefore instead of assisting the case of the respondent, assists the case of
the appellant.
16.
In
Amrit Vanaspati Co. Ltd. v. Khem Chand and Anr.[(2006) 6 SCC 325] , this Court
held:
"In our opinion,
the High Court while exercising powers under writ jurisdiction cannot deal with
aspects like whether the quantum of punishment meted out by the management to a
workman for a particular misconduct is sufficient or not. This apart, the High
Court while exercising powers under the writ jurisdiction cannot interfere with
the factual findings of the Labour Court which are based on appreciation of
facts adduced before it by leading evidence. In our opinion, the High Court has
gravely erred in holding that the evidence of Respondent 1 was not considered
by the Labour Court and had returned the finding that the evidence of
Respondent 1 did not inspire any confidence. We are of the opinion that the
High 13 Court is not right in interfering with the well- considered order
passed by the Labour Court confirming the order of dismissal."
17.
We
furthermore must take into consideration certain subsequent events. Respondent
did not join the services of appellant pursuant to the award of reinstatement.
He obtained an alternative employment in October 1996. He is still continuing
in the said job. He has already been paid a sum of Rs.83,954/- by way of back
wages.
18.
For
the reasons aforementioned, the impugned judgment of the High Court cannot be
sustained, and is set aside. The appeal is allowed accordingly. However, the
amount of Rs.83,954/- already paid by way of back wages may not be recovered
from the respondent.
In the facts and
circumstances of the case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Cyriac Joseph]
New
Delhi;
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