CASE NO.: Appeal (civil) 7797 of 2003 PETITIONER: Andhra Pradesh State Road Transport Corporation & Ors. RESPONDENT: Abdul Kareem DATE OF JUDGMENT: 02/08/2005 BENCH: ARIJIT PASAYAT & H.K. SEMA JUDGMENT:
J U D G M E N T
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
A.P.S.R.T.C. Vs. P. Nageshwar Rao, 2001 (4) ALD 568, directed the
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
decision. In the case of A.P. SRTC and Anr. Appellants Vs. S.
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.