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Judgment
Introductory:-
The Writ Petitioner in W.P.No.28893 of 2021 filed the present appeal dissatisfied with the orders dated 27.09.2024 passed by a learned Single Judge of this Court.
The writ petitioner was appointed as casual Conductor in the respondent-Corporation on 30.03.1999 and he was regularised as Conductor from 04.08.2000. Alleging certain irregularities, show-cause notice dated 21.01.2014 was issued to the petitioner and after conducting regular inquiry, a show cause notice for removal was issued on 25.07.2014 and he was subsequently removed from the service vide orders dated 13.08.2014 by the competent authority. The appeal preferred was dismissed by the Deputy Chief Traffic Manager, Nellore on 17.01.2015 and the review was also dismissed. The petitioner has preferred ID No.113 of 2015 before the Industrial Tribunal-cum-Labour Court, Guntur seeking to set aside the removal order dated 17.01.2015 and the same was dismissed. Then, the Writ Petition was filed questioning both quantum of punishment and finding him guilty.
Findings of Learned Single Judge:-
The punishment of removal from service for the alleged irregularity of collecting a fare of Rs.33/- without issuing a ticket is grossly disproportionate to the nature and gravity of the misconduct. Therefore, the petitioner shall be reinstated into service by awarding a punishment of deferment of increment for one year with cumulative effect, besides recovery of 10 times of total ticket amount in terms of Circular PD No.1 of 2019 dated 01.01.2019.
Arguments in the Appeal:-
For the appellant/writ petitioner:-
[i] Learned counsel for the appellant would submit that the appellant is entitled for entire back wages along with all consequential benefits.
[ii] The appellant was un-employed w.e.f. 13.08.2014 to October 2024, therefore, is entitled to back wages as he was not gainfully employed during the period of out of employment.
For the respondents-APSRTC :-
[i] The charges are grave. It is a case of collecting amount and not issuing the ticket, which is a serious misconduct.
[ii] Four charges are framed for viz., (1) having violated the Rule issue and start, (2) failure to issue ticket to passenger, who boarded the bus, (3) allowing the passenger to travel without ticket, (4) refusing to acknowledge the charge memo. All these constitute serious misconduct.
[iii] Punishment of deferment of annual increments was ordered against the petitioner in different cases involving cash and ticket irregularities.
[iv] The inquiry officer provided reasonable opportunity to the petitioner to defend the case.
[v] After considering the statements of ticketless passenger, penalty of removal from service was imposed, in proportionate to the gravity of the misconduct.
[vi] The principles of natural justice are followed at every stage.
[vii] The Labour and Industrial Tribunal properly appreciated the evidence on record and rightly adjudicated the Industrial Dispute No.113 of 2015.
[viii] The petitioner is not entitled for any benefit.
[ix] There are no grounds to interfere with the findings of the learned Single Judge and the appeal is liable to be dismissed.
Heard both sides extensively.
7 Thoughtful consideration is given to the arguments advanced by both sides.
Now the points that require determination in this appeal are -
Whether the orders dated 27.09.2024 passed by the learned Single Judge of this Court in W.P.No.28893 of 2021, require any interference?, and whether the petitioner is entitled for wages during the period of absence from duty?
What is result of the appeal?
Point No.1:-
The succession of events is as follows:-
The charge memo was issued on 21.01.2014.
Show cause notice for removal was issued on 25.07.2014.
The petitioner was removed from service on 13.08.2014.
The appeal and reviews were came to be ended by 17.01.2015.
Thereafter, ID No. 113 of 2015 was moved and the same also dismissed.
Analysis:-
(i) Learned Chairman, Industrial Tribunal-cum-Presiding Officer, Labour Court, Guntur has considered all the documents and misconduct etc..
By referring to the Circular memo, learned Single Judge has ordered reinstatement but did not grant back wages.
The merits of the case were duly appreciated by the learned Industrial Tribunal as well as the learned Single Judge, including the implications of the Circular relied upon by the writ petitioner.
The specific plea that the petitioner was not gainfully employed during the period from the date of removal from service until reinstatement has been expressly pleaded.
It is not the case of appellant/writ petitioner that no misconduct is made out against him.
His contention is that the punishment imposed is disproportionate to the misconduct established.
The present case is one where the fare was admittedly collected by the appellant/writ petitioner, but the corresponding ticket was not issued to the passenger. The statement of the passenger recorded during the spot enquiry clearly establishes that the fare had been collected by the delinquent employee without issuing the requisite ticket.
It is also evident from the observations of the learned Industrial Tribunal that the management, while imposing the penalty of removal from service, considered the cumulative circumstances of the case, including the past record of the writ petitioner, with reference to Ex.M27-Service Register, involvement in cash and ticket irregularities, and on four occasions, he was let off with minor penalties like fine and severe warnings etc., and that, he repeatedly committed similar cash and ticket irregularities.
The learned Industrial Tribunal has rightly taken note of these antecedents while upholding the proportionality of the punishment imposed. However, the learned Single Judge considered the nature and scope of charges, and the extent of money involved. Upon considering the same, the learned Single Judge directed reinstatement of the writ petitioner while directing the deferment of increments with cumulative effect, which suggests that finding of misconduct, is not interfered.
Further, it is relevant to note that the principle of „no work, no pay” can be applied where an employee remains out of service and such period of non-employment is attributable to the misconduct committed by the employee.
The Circular referred by the learned Single Judge is dated 01.01.2019, and its applicability to the facts of the present case is also disputed. Therefore, upon considering the facts and circumstances of the present case, this Court is of the view that the appellant/writ petitioner is not entitled to back wages for the period during which he remained out of service pursuant to the order of removal. However, the period during which he was out of service from 2014 until his reinstatement, can be considered as “on duty” for the limited purpose of continuity of service and for computation of pensionary benefits and other service benefits like seniority.
The Hon‟ble Apex Court in a similar circumstance of the case in Union Territory, Chandigarh Vs. Brijmohan Kaur1 observed that –
“.........It is settled law that when an incumbent does not discharge any duty, the principle of “no work no pay” would be applicable. This consistent view has been taken by this Court keeping in view of the public interest that any government servant who does not discharge his duty should not be allowed to draw pay and allowances at the cost of public exchequer.”
Further, in V.C. Jain Vs. State Bank of India2, the Hon‟ble Apex Court considered the issue while observing that the employee therein is not entitled to back wages for the period of suspension and dismissal, but the said period shall be counted as period of service without any break and thereby directed the respondents to re-fix the pensionary and retirement benefits of the petitioner by treating the aforesaid period as having been spent on duty.
In view of the facts and circumstances of the case and also in view of the observations of the Hon'ble Supreme Court in the cases cited above, the prayer of the appellant for granting back wages during the period out of employment is rejected, by applying the principle of “no work- no pay”. However, the said period can be considered for the limited purpose of computation of pensionary etc., benefits. Point No.1 framed, is answered accordingly.
Point No.2:-
In the result, the Writ Appeal is disposed of, as follows:-
[i] The orders dated 27.09.2024 passed by the learned Single Judge of this Court in W.P.No.28893 of 2021 is confirmed.
[ii] However, the period during which the petitioner was out of employment from 13.08.2014 until his reinstatement, can be considered as “on duty” for the limited purpose of continuity of service for computation of pensionary etc. benefits.
[iii] There shall be no order as to costs.
[iv] As a sequel, miscellaneous petitions pending, if any, shall stand closed.