Supreme Court of India
A.P.S.R.T.C. AND ANR.versusS. NARSAGOUD
- Citation
- 2003 INSC 17
- Decided
- 15 January 2003
- Disposal
- Appeal(s) allowed
- Bench
- R C LAHOTI
Holding
An employee who has been held guilty of unauthorized absence cannot claim notional increments for the period of such absence unless a specific direction is made to that effect.
Summary
The respondent, a conductor employed by Andhra Pradesh State Road Transport Corporation, was removed from service for two periods of unauthorized absence in 1982 and 1992. He raised a dispute under Section 2(A)(2) of the Industrial Disputes Act, 1947, and the Labour Court reinstated him with continuity of service but without back wages. The High Court, however, directed the corporation to compute and grant periodical increments that the employee would have earned during his absence. The corporation appealed, arguing that such increments could not be awarded without a specific direction. The Supreme Court held that an employee found guilty of unauthorized absence cannot claim notional increments for the period of absence unless a specific order provides for it, and set aside the High Court's judgment. Consequently, the appeal was allowed and the employee was reinstated without the contested increments.
Issues considered
- Whether a workman reinstated with continuity of service is entitled to periodical increments for the period of unauthorized absence.
- Whether the High Court's direction to compute notional increments for the period of absence is valid in the absence of a specific order.
- Interpretation of the Andhra Pradesh State Road Transport Corporation Employees (Pay and Allowances) Regulations, 1964 regarding increments for extraordinary leave, leave without pay, and over‑stay.
- Application of Section 2(A)(2) of the Industrial Disputes Act, 1947 to the reinstatement and back‑wage claim.
Legislation cited
- Industrial Disputes Act, 1947s. 2(A)(2)
Subjects
service lawunauthorised absencecontinuity of serviceperiodical incrementsindustrial disputesreinstatementpay regulationsback wagesdisciplinary action
Judgment
A A.P.S.R.T.C. AND ANR.
v.
S. NARSAGOUD
JANUARY 15, 2003
B [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]
Service law:
Andhra Pradesh State Road Transport Corporation Employees (Pay
C and Allowances) Regulations, 1964:
Regulations 13(2) and (8)-Jncrements-Effect on of unauthorised
absence from duty-Workman-Unauthorised absence from duty-Removal +
from service-Industrial dispute-Labour Court directing reinstatement of
D workman with continuity of service but without back wages-Writ petition by
workman claiming periodical increments which would have been earned by
him had he been in service during the period of absence-Allowed by High
Court-Held, workman after having been held guilty of unauthorised absence
from duty cannot claim benefit of increments notionally earned during the
period of unauthorised absence in the absence of a specific dirt!ction in that
E regard-Judgment of High Court set aside-Industrial Disputes Act, 1947-
s.2A(2)-Workman-Claim for increments.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6362 of
2000
F· From the Judgment and Order dated 9.12.1999 of the High Court of
Andhra Pradesh in WA I 855/99. '·
R. Santhana Krishnan and Guntur Prabhakar for the Appellant.
The following Order of the Court was delivered
G
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. I 982 and 8.8. I 982 +
on the first occasion and again between I 3. I 0. I 992 and I . I I .1992 on the
second occasion. A chargesheet was served on him alleging the period of
H 386
A.P.S.R.T.C. v. S. NARSAGOUD 387
-r absence to be an unauthorised absence from duty. The respondent pleaded A
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. Jn 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 B
t 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
c
inquiry proteedings or with the findings arrived thereat. However, the Labour
t- Court con,cluded 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, D
"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 E
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
~·
F
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 G
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. H
388 SUPREME COURT REPORTS [2003] l S.C.R.
A 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,~ djrection for release of conseq~~nt!8itb~n.~f!~
and specificajl~ for the. b~i;ie,f1MfJracr~ments being give111t1'.~~~ 1 th~:i!t;m.,Jqrr,~
B might have; e~ptecL~-'1fiJlgr1\~nP.~i9.<t, of unaijtborisrd.i·i~~~e,qp"e..., fr.o,1Pr,d~~>f
merely b~Ga\\S' tb~1GmP.l9'~.ft ~~~Jl~~rllllPw.~.~ttU~..JP~l1~Jit.1Rf ~gqt~ll!;'Jl)S gf
service the be.l}~fi.t-~f s.\1£~1iqg~~ffi~Sl63"\~h~~i fff}~a§tfl lfl i~;~:j1Jl~. RF~~~,t
of continuity of service only means that for the purpose of seniority and
pensionafy; lienefiitS' tlie 'j>ettiddm ·aHsenceist?.all bIDtaken 1into~MfQunt:11s spent
on duty,'lsubmitted<tt1ei leaitredlqqunsel rfot the:.appellaQUlti supt>Q~JfJ(ithis
C submis~i'onJhaJ<hils 1atsbf iri\iiedd1olfr£attentioil to:1tlrenpoo~isio11s '@f r~ndbr-a
Pradesh~wlR.olidrT!J'enipm!ti1001ponatlon Employees~.RaS! rand !Afluwances)
R~g(llatiUits;1:t·9.6ttoaild1 ra.1Cittblariiss11!ditltereundert·.byoAIJ?1SYR.£<q.
..·.i! i,, ,,! l!)ginrb ~rll 1o '(i!iug 2sw tn~bnoq~51 ~Hli rl;;uorlt rnrll b!)bubno:> twu J
, )! :·.. 2rJdt~JSDi4i!l,:f gHJa~H~rn§!:JliWJITP&,~ ifr~rn,~1il1Jdr£t;,<?Pb~l~~tf~1.1!P ,fiM~~i~ti9l
iq~§~~.9JY~~ffiq 0pfffn;~ 0~~fw.pwtiP.!l; ~~i:.~~\fl %~9lfii&!f.l.,t\9XW
D w:ov.i<JR§ 1w~:nlWGP.~1YH~~rrs nG1 ~rh ni ~llnn!lq ~11fr1q01qqi:; ::;rh ~d bluow
5v;JTji_r_qPI)'11Al1 ·<la?;Viif 2a1icrJl lHIP Rct1n1~-~cHle ~&Wtft~ iy3i1<lh&'effil!n~ l~ rbi'~t
:.·.:2.:wq ghr5dt 22nw brn1w A ns 1.Grll b5J£1~11:;1 l1llo:) iuod1;J :;.rlt b16Vt A cJi 1o tmq
1me-sca e. ·
niuni 1110:> rltiw '..l:>iv1!)~ ni 1511oitil:Jq !)fh 5l6J2ni51 ot Jn5b11oq2::>1 !)fh gnit·n1ib"
(2) Service in another post, wh~~siJh~r~Jli?~t~\)~iMCi.%" g!'fi.Ciij\~i~ . ~-
capacity, service on deputation and leave other than extraordinary
E
• •': 'Jl 1~ave 1 tfflea'Vecw1\ntd.lt.\5ayi1fottnt flJr i«!~meiiiw~n ttfeiltiml:-scale
·ti ~~plicaBt~ 2 to1 tdei~tfsflt>tf-\viHtM tfie re~1~yee ttottl& li''.llil1n;.rWi
as
Av.Jb1il' >iR ftlie"Jtffne£S<:i'fetappti~ab~~'lt~ ~ftijlp~p~·r p~!:t§,5lfra~,
,, "tion \vliiclh'1fei·~1irnia1& 'a lien ff ttlt'.ai·~~~en'.JflbtJ'b~ ~s~ena~c:t:
.:fi! "·" !i:'fli'.>'I <id flO I'· r,: ,;1foy1;q 2~!Jl. !I '.Jr!J !.!ni;i:f! :J(irfw Jud
F , ,g~o.vi_ded th,aHhF ~9~P.rt~!1,t ~ut~~rj~ ·~~Wh)}~vMfiM>~lri~rrr\q,~?ir
case in which it .is ~ati~fied,,~hat the extra%d1P.af,Y1 d~~ve .or_\~~~;
without pay, as the case may be, was taken on acco~1,1t of illni;:ss or
any other cause beyond the employee's control, to direct that such
period shall count for increments under this clause.
G 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 (S) of the regulation 9, the period of
officiating service shall not count for increments under clause (2)
above
H xxx xxx xxx
A.P.S.R.T.C. v. S. NARSAGOUD 389
xxx xxx xxx A
(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." B
xxx xxx xxx
f
xxx xxx xxx
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 C
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 D
adding any notional increment for the period out of service.
xxx xxx xxx
xxx xxx • xxx
(4) On fixation of pay as on the date of reinstatement annual E
increment may be regularly drawn."
xxx xxx xxx
xxx xxx xxx
However, it appears that consequent upon the judgement of the learned F
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 G
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 · H
390 SUPREME COURT REPORTS (2003) I S.C.R.
A there is no payment of wages for the period of absence. This results into a
incongruous situation, submitted the learned counsel for the appellant.
't
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
B 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 -t
earned during the period of absence. In our opinion, the employee after
having been held guilty of unauthorised absence from duty cannot claim the
c 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
D 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 ~
E 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
F 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.
G 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.
H R.P. Appeal allowed.
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