(Prayer: Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ order or direction more particularly one in the form of Writ of Certiorari (a) call for the records pertaining to and related to award passed by the Hon'ble Labour Court, Guntur in I.D. No. 6 of 2008 dated 28.06.2011 and quash or set aside the same by declaring the same as arbitrary, illegal and contrary to the law laid down by the Hon'ble Supreme Court of India as the corporation has followed the prescribed procedure as per the regulations; and (b) consequently declare that the 2nd respondent is not entitled for any back wages and continuity of service as the 2nd respondent has committed misconduct and pass

IA NO: 1 OF 2012(WVMP 4040 OF 2012

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim orders grated in W.P.M.P. No. 38147 of 2012 in W.P. No. 29890 of 2012, Dated 25-9-2012

IA NO: 2 OF 2012(WPMP 36068 OF 2012

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 245 days in resubmitting the above WPSR.No.183752 of 2011 and pass

IA NO: 3 OF 2012(WPMP 38147 OF 2012

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased stay all further proceedings in the award by the Hon'ble Labour Court in I.D.No. 6 of 2008 dt. 28.6.2011and pass

IA NO: 1 OF 2014(WVMP 3623 OF 2014

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased vacate the interim orders granted in W.P.M.P.No. 38147 of 2012 in W.P.No. 29890 of 2012, dated 25.9.2012 and dismiss the Writ Petition)

1. The learned Standing Counsel appearing for the petitioner submits that the award passed in I.D. No. 6 of 2008, dated 28.06.2011, directing reinstatement of the 2nd respondent into service together with back wages and continuity of service along with attendant benefits was passed without appreciating the facts.

2. The 2nd respondent, while working as a Conductor, was imposed the punishment of removal from service for having been involved in a cash and ticket irregularity. The facts of the case are as follows:

               The 2nd respondent, while on duty on 27.11.2004, issued tickets to the passengers, and when the checking officials conducted a surprise check, one passenger who boarded the bus along with her daughter was found to have been issued only one ticket instead of two tickets. The 2nd respondent was issued a charge memo calling for an explanation, and thereafter, an inquiry was conducted.

3. The petitioner imposed the punishment of removal from service vide proceedings dated 28.06.2005. The 2nd respondent, aggrieved by the said order, filed an ID. No. 6 of 2008 on the file of the Labour Court, Guntur. It is submitted that the Labour Court had erred in not considering the stand of the passenger and that she had categorically stated that she was issued only one ticket. The Labour Court had also erred in not considering the documentary evidence submitted before it. It is also submitted that the 2nd respondent did not file any documents. On the contrary, the petitioner had filed as many as 25 exhibits which could have clinchingly proved the guilt of the 2nd respondent.

4. The learned counsel for the petitioner further submits that the Labour Court has passed an order on presumptions by ignoring the facts on record. It is also submitted that the 2nd respondent was reinstated into service in terms of the order passed by the Labour Court. However, this Court had granted a stay on the relief of continuity of service, back wages and attendant benefits. It is further submitted that the 2nd respondent is not entitled to claim back wages, as there is no averment in the writ petition that he was not gainfully employed during the period when he was not on duty.

5. The learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court in the matter of Reetu Marbles vs. Prabhakant Shukla ((2010) 2 Supreme Court Cases 70), had held that the employee claiming backwages must aver in the pleadings that he is not gainfully employed elsewhere. The learned counsel for the petitioner submits that the 2nd respondent has not whispered about his status with regard to employment elsewhere; in the absence of such an averment, the 2nd respondent cannot claim any back wages.

6. It is submitted that, on these considerations, the claim of the 2nd respondent for back wages and other benefits would have to be set aside. It is also submitted that the 2nd respondent has also attained the age of superannuation during the pendency of the writ petition.

7. The learned counsel appearing for the 2nd respondent submits that the Labour Court had passed a reasoned and well-considered order and has also recorded the inconsistency in the petitioner's stand and refers to Paras 10, 11 and 12 of the award. It is submitted that the bus was carrying more than 100 passengers, apart from 20 other passengers sitting on the roof of the bus. As such, the passenger who was in the middle of the bus had passed on the money to another neighbouring passenger for purchasing tickets. The said passenger had received two tickets and the relevant change from the neighbouring passenger issued by the 2nd respondent.

8. On account of the severe rush, the passenger has stated that one ticket had fallen down and she was holding only one ticket. The checking officials have cornered the said passenger and threatened her that she would be taken to the police station, and under that threat, the passenger is said to have retracted her statement and stated that she was given only one ticket in order to avoid complications for which she was not prepared for.

9. It is also submitted by the learned counsel for the 2nd respondent that the neighbouring passenger appeared before the enquiry officer and had categorically stated that the 2nd respondent had issued two tickets which were passed on to the passenger. The issue of tickets is also corroborated by the driver of the bus, and it is also pertinent to mention that the bus did not stop anywhere from the point of issue of tickets till Sattenapalli. The checking officials stopped the bus at Sattenapalli and entered the bus to conduct the check. It was always open for the checking officials to record statements of all or any of the passengers whom they felt relevant in order to ascertain the true facts. It is submitted that the checking officials did not record the statement of the neighbouring passenger who had passed on the money to the 2nd respondent for the issue of tickets and thereafter passed back the two tickets along with the relevant change to the passenger who purchased the tickets.

10. The 2nd respondent further submits that on account of the stay granted by this Court, the 2nd respondent has not received the monetary benefits which were due and payable to him. He also submitted that when the The 2nd respondent was removed from service, he was aged about 47 years and the 2nd respondent could not have secured any employment elsewhere. It is also submitted that the 2nd respondent had exhausted all available remedies, such as appeal and review, in vain. It is also submitted that, having no other option, the 2nd respondent approached the Labour Court and filed an ID. No.6 of 2008. It is submitted that there is no delay on the part of the 2nd respondent in seeking the available remedy at any point in time.

11. The learned counsel for the 2nd respondent has placed reliance on the judgment of the Hon’ble Supreme Court in the matter of JT. Registrar of Co-Operative Societies, Madras and others vs. P.S.Rajagopal Naidu and others (1970 (1) Supreme Court Cases 753). The Hon’ble Supreme Court held that in a writ of certiorari, the High Court ought not to act as an appellate Court and reappraise and re-examine the relevant facts and circumstances.

12. The learned counsel for the 2nd respondent has placed another reliance on the judgment of the Hon’ble Supreme Court in the matter of B.K. Muniraju vs. State of Karnataka and others ((2008) 4 Supreme Court Cases 451). The Hon’ble Supreme Court has reiterated that a writ of cerritiorai can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction and writ of cerritorari can be issued only if in recording such a finding, the Tribunal/authority has acted on evidence which is legally in admissible, or has refused to admit an admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law.

13. Heard the learned counsel for the petitioner and the learned counsel for the 2nd respondent. Perused the record.

14. The 2nd respondent was terminated vide proceedings dated 28.06.2005. The appeal and review preferred by the 2nd respondent were rejected. On the facts and circumstances of this case, it is evident that the 2nd respondent was not at fault, and the stand of the 2nd respondent has been consistent and unambiguous. The statements recorded by the enquiry officers would also categorically clarify that the 2nd respondent was not at fault, and the passenger had admitted issuance and receipt of two tickets from the 2nd respondent through the neighbouring passenger.

15. The same is also stated by one G. Navaneetha Raju, who appeared before the enquiry officer and stated the facts. The driver of the bus had also corroborated the issuance of two tickets by the 2nd respondent. It is pertinent to note that about 20 students had climbed over the bus top apart from about 100 passengers in the bus. The situation is left to the imagination of the petitioner for holding the 2nd respondent guilty and imposing the punishment of removal to the 2nd respondent from service. The capacity of a bus is generally about 35-40 passengers, and one conductor is expected to issue tickets to the passengers. When the number of passengers who boarded the bus increased by three times the capacity, the petitioner ought to have dealt with the issue with some sensitivity.

16. The petitioner has not exhibited the minimum prudence expected of a responsible employer, resulting in terminating the service of the petitioner for the alleged cash and ticket irregularity, though the 2nd respondent was not at fault. The 2nd respondent was out of service from the date of termination till the date of reinstatement without committing any cash and ticket irregularity. Assuming that the 2nd respondent had committed a cash and ticket irregularity, there should be a mismatch in the cash box and a mismatch in the stage register relating to the issuance of tickets. When the petitioner has not alleged either finding of excess cash with the 2nd respondent or a mismatch in the SR of tickets issued, there cannot be a case of cash and ticket irregularity by any stretch of imagination.

17. This Court would have considered the submission of the learned counsel for the petitioner that the 2nd respondent would not be entitled to back wages on the principle of “no work no pay”, subject to the petitioner demonstrating the guilt of the 2nd respondent. On the facts of this case, the 2nd respondent has become a victim of circumstances and was out of employment without committing any irregularity or misappropriation. The fault committed by the checking officials of the petitioner cannot be at the cost of the 2nd respondent's career and service. The Labour Court has passed a well-reasoned, well-considered and appropriate order in the interest of justice.

18. The Judgment relied upon by the learned counsel for the petitioner regarding disentitlement of the 2nd respondent for back wages is concerned, the Hon’ble Supreme Court in the said judgment referred supra had also held that Principle of payment of back wages had discretionary element involved and it has to be dealt with in circumstances of each case and no straight jacket foreign law can be evolved.

19. On the facts of this case, this Court is of the considered view that the 2nd respondent was removed from service without any fault, and the petitioner has dealt with the case of the 2nd respondent without any sensitivity. As such, the petitioner is liable to pay the back wages along with all service benefits due payable to the 2nd respondent. Considering the submission that the 2nd respondent has attained the age of superannuation, the petitioner would have to release the back wages and all monetary benefits as awarded by the Labour Court, Guntur, in I.D.No.6 of 2008.

20. Accordingly, this writ petition is dismissed, making it clear to the petitioner to release all the service benefits due and payable to the 2nd respondent as directed by the Labour Court in I.D.No. 06 of 2008, within a period of eight (08) weeks from the date of this order. There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.