CASE NO.: Appeal (civil) 6362 of 2000 PETITIONER: A.P.S.R.T.C. AND ANR. RESPONDENT: S. NARSAGOUD DATE OF JUDGMENT: 15/01/2003 BENCH: R.C. LAHOTI & BRIJESH KUMAR JUDGMENT:
JUDGMENT
2003 (1) SCR 386
The following Order of the Court was delivered
The respondent was a Conductor, and hence a workman, in the employment of
the appellant Andhra Pradesh State Road Transport Corporation. He remained
absent from duty between 5.6.1982 and 8.8.1982 on the first occasion and
again between 13.10.1992 and 1.11.1992 on the second occasion. A
chargesheet was served on him alleging the period of absence to be an
unauthorised absence from duty. The respondent pleaded that he had remained
absent because of ill health-due to jaundice for the first period of
absence and due to chest pain and fever for the second period of absence
from duty. In the departmental inquiry proceedings the two charges
referable to two periods of absence from duty framed against the respondent
were found to be proved and the explanation for absence as offered by him
was found not to have been substantiated. The respondent was inflicted with
the punishment of removal from service.
The respondent raised a dispute under Section 2(A)(2) of the Industrial
Disputes Act. 1947, as amended in its application to the State of Andhra
Pradesh by A.P. Amendment Act No. 32 of 1987. The Labour Court by its Award
dated 24.12.1997 held that no fault could be found with the disciplinary
inquiry proceedings or with the findings arrived thereat. However, the
Labour Court concluded that though the respondent was guilty of the charges
levelled against him but be had been without employment during the period
of absence and has suffered thereby and so the penalty of not providing
backwages would be the appropriate penalty in the facts and circumstances
of the case, “while ordering for reinstatement with continuity of service”.
In the operative part of its Award the Labour Court reiterated that an
Award was being passed “directing the respondent to reinstate the
petitioner in service with continuity of service but without backwages”.
Feeling aggrieved by the Award of the Labour Court, the respondent
preferred a writ petition in the High Court which was heard and disposed of
by a learned single Judge vide the judgment dated 16.9.1999. A grievance
was raised before the High Court that although the respondent was
reinstated, but while fixing the wages payable to him on his reinstatement,
the periodical increments which would have been earned by him had he been
in service during the period of absence were not taken into account. The
High Court directed the appellant Corporation to compute the periodical
increments that would have been earned by the respondent had he been in
service during the period of absence from duty and to fix the wages payable
to the respondent after his reinstatement by taking into account the said
increments. The appellant preferred an intra Court appeal which has been
dismissed by a Division Bench of the High Court by its impugned order. The
appellant has filed this appeal by special leave.
The respondent has chosen to remain absent of notice having been served on
him. Therefore, the hearing has been set down ex parte against him. The
only submission made by the learned counsel for the appellant is that when
an employee remains unauthorisedly absent from duty and though he has been
directed to be reinstated with continuity of service by a judicial order
unless and until there is a direction for release of consequential benefits
and specifically for the benefit of increments being given which the
employee might have earned during the period of unauthorised absence from
duty merely because the employee has been allowed the benefit of continuity
of service the benefit of such increments cannot be released to him. The
benefit of continuity of service only means that for the purpose of
seniority and pensionary benefits the period of absence shall be taken into
account as spent on duty, submitted the learned counsel for the appellant.
In support of his submission he has also invited our attention to the
provisions of Andhra Pradesh State Road Transport Corporation Employees
(Pay and Allowances) Regulations, 1964 and a circular issued thereunder by
A.P.S.R.T.C.
The said Regulations have been framed and promulgated in exercise of the
statutory powers conferred on the Corporation. Para 13 of the Regulations
provides inter alia as under:-
“13. (1) All duty in a post on a time-scale counts for increments in that
time-scale.
(2) Service in another post, whether in a substantive or officiating
capacity, service on deputation and leave other than extraordinary leave or
leave without pay count for increments in the time-scale applicable to the
post on which the employee holds a lien, as well as in the time-scale
applicable to the post or posts, if any, on which he would hold a lien had
his lien not been suspended:
Provided that the competent authority shall have the power in any case in
which it is satisfied that the extraordinary leave or leave without pay, as
the case may be, was taken on account of illness or any other cause beyond
the employee’s control, to direct that such period shall count for
increments under this clause.
Explanation : Where an employee is appointed to officiate in a post on a
time-scale of pay but has his pay fixed below the minimum of the time-scale
under clause (5) of the regulation 9, the period of officiating service
shall not count for increments under clause (2) above
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(8) A period of overstayal after the expiry of leave of joining time, as
the case may be does not count towards increments unless it is commuted
into extraordinary leave or leave without pay, as the case may be and
extraordinary leave, or leave without pay is specifically allowed to count
for increments.”
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On 8.9.1992, the Corporation issued Circular No. 19/9 laying down
guidelines for implementation of the Awards of Labour Courts in the matter
of fixation of pay of employees reinstated pursuant to such Awards subject
‘to result of writ petitions. The Circular provides inter alia as under: –
“(2) When an employee is reinstated into service with continuity of service
only, the last pay drawn by the employee has to be fixed at the appropriate
stage in the revised pay scale 1989 without adding any notional increment
for the period out of service.
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(4) On fixation of pay as on the date of reinstatement annual increment may
be regularly drawn.”
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However, it appears that consequent upon the judgement of the learned
single Judge dated 16.8.1999. and other similar judgments disposing of the
writ petitions, the Corporation was compelled to issue another circular
whereby it directed that in view of the said judgments of the High Court it
was necessary that in a case where an employee was directed to be
reinstated with continuity of service the pay of the employee shall be re-
fixed by giving notional increments for the period out of service though
the monetary benefit of revised fixation shall be given only from the date
of reinstatement. The effect of the judgment of the learned single Judge,
upheld by the Division Bench and the Circular issued consequent upon the
judgment of the High Court is that the employee being reinstated, inspite
of having been held guilty of unauthorised absence from duty, continues to
earn increments though there is no payment of wages for the period of
absence. This results into a incongruous situation, submitted the learned
counsel for the appellant.
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 frem 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 unauthorised absence from duty
cannot claim the benefit of increments notionally earned during the period
of unauthorised absence in the absence of a specific direction in that
regard and merely because he has been directed to be reinstated with
benefit of continuity in service.
The Regulations referred to hereinabove clearly spell out that the period
spent on the extraordinary leave or leave without pay or a period of over-
stayal after the expiry of leave or joining time cannot count towards
increments; unless the order of the competent authority sanctioning the
extraordinary leave or leave without pay or the order commuting the period
of over-stayal into extraordinary leave or leave without pay is accompanied
by a specific order to count the period for increments. A period of
unauthorised absence from duty treated as a misconduct and held liable to
be punished by way of penalty cannot be placed on a footing better than the
period of extraordinary leave or leave without pay or a period of over-
stayal. Ordinarily, the increments are earned on account of the period
actually spent on duty or during the period spent on leave the entitlement
to which has been earned on account of the period actually spent on duty.
The direction of the High Court entitling the respondent to earn increments
during the period of unauthorised absence from duty though held liable to
be punished in departmental inquiry proceedings would amount to putting a
premium on the misconduct of the employee.
For the foregoing reasons, we are of the opinion that the impugned judgment
of the learned single Judge of the High Court and upheld by the Division
Bench cannot be sustained. The judgment of the learned single Judge and the
Division Bench are, both, set aside. The appeal is allowed. No order as to
the costs.