Supreme Court of India
THE DEPOT MANAGER A.P.S.R.T.C.versusP. JAYARAM REDDY
- Citation
- 2008 INSC 1480
- Decided
- 18 December 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The High Court's order granting full back wages was a misdirection in law; the Supreme Court set it aside, upholding the Labour Court's award of reinstatement without full back wages.
Summary
The respondent, a conductor employed on a casual basis, was removed for misconduct and later reappointed without disclosing his prior dismissal. Upon discovery of this concealment, he was again dismissed following departmental proceedings. The Labour Court upheld the dismissal as valid but deemed the punishment harsh, ordering reinstatement without full back wages. The High Court intervened, granting full back wages and setting aside the Labour Court's award. The Supreme Court held that the High Court erred by interfering with the Labour Court's discretionary jurisdiction and that back wages are not automatic in such cases; it set aside the High Court order, upheld reinstatement without full back wages, and ruled that the back wages already paid could not be recovered. The appeal was allowed.
Issues considered
- Whether the High Court could interfere with the Labour Court's discretionary jurisdiction in awarding back wages.
- Whether concealment of prior removal constitutes misconduct justifying denial of back wages.
- Whether back wages are payable when the removal is upheld but deemed harsh or disproportionate.
- Whether back wages already paid can be recovered from the employee.
Legislation cited
- Industrial Disputes Act, 1947s. 11A, s. 2-A(2)
Subjects
labour lawback wagesdisciplinary dismissalconcealment of prior employmentdiscretionary jurisdictionLabour CourtreinstatementIndustrial Disputes Act
Judgment
[2008] 17 S.C.R. 1185
THE DEPOT MANAGER A.P.S.R.T.C. A
v.
P. JAYARAM REDDY
(Civil Appeal No. 7406 of 2008)
DECEMBER 18, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
LABOUR LAW:
Back wages - A conductor appointed on casual basis
removed from service on the charge of misconduct - C
Appointed again in an open recruitme_nt - Dismissed from
service for concealing the fact of earlier employment- Labour
Court ordered reinstatement but without back wages - High
Court allowing back wages - Held: High Court was bound to
consider as to whether it should interfere with discretionary o
jurisdiction exercised by Labour Court - Order of High Court
amounted tg misdirection in law and is set aside.
The respondent, a conductor appointed by the
appellant Corporation on casual basis, was removed
from service for misconduct relating to sale of tickets and E
.-other irregularities. He again applied for and was
-. .- appointed as conductor in an open recruitment. Later,
when it came to light that the respondent had concealed
the fact of his previous employment with the Corporation
and removal therefrom, a charge-sheet was issued to him
and departmental proceedings were initiated, which F
culminated in his dismissal from service. The workman
filed an application before the Labour Court, which ,r
although opined that the disciplinary proceedings were /
valid and proper, yet, relying on a decision of. the High
Court that there being no column in the application form G
to furnish information with regard to previous
employment no misconduct could be said to have been
committed by the employee, directed reinstatement with .
all benefits except full back wages. The writ petition filed
1185 H
1186. SUPREME COURT REPORTS [2008] 17 S.C.R.
A by the workman claiming back wages was allowed by the
single Judge. The intra-court appeal filed by the employer
having been dismissed by the Division Bench of the High
Court, he filed the appeal.
Allowing the appeal, the Court
B HELD:1.1. It may be that the respondent had no duty
to furnish information about his previous employment,
but the order of appointment was passed in ignorance
of the fact that his services had been terminated on the
charges of grave misconduct. An order of removal from
C services has some consequences. Although on general
principle, an order of removal may not bar future
employment but, indisputably, the same w9uld mean
causing vacation of office as a result of misconduct or
misbehaviour or any other si'!'ilar cause. In a case wher~
0 an employee occupying a position of trust is removed
from the office, a loss of confidence in him may occur.
Had the appellant, therefore, any knowledge~thereabout,
the employee might not have been reappointed at all.
[Para 10 and 12] [1191-A-B-E]
E Dr. Dattatraya Mahadev Nadkarni since deceased by His
L.Rs. vs. Municipal Corporation of Greater Bombay (1992)·2
sec 547, referred to.
1.2. The Labour Court considered the entire matter,
and opined that the punishment of removal from service
F imposed upon the respondent was 'very much harsh,
disproportionate and unjustified'. There is no finding that
the order of removal was wholly illegal and, thus, void ab .
initio. The validity and/or legality of the domestic enquiry
was upheld. Therefore, the High Court was bound to
consider as to whether it should interfere with such a
G discretionary jurisdiction exercised by the Labour Court.
It has not been found by the High Court that the
discretionary jurisdiction exercised by the Labour Court
was otherwise arbitrary or perverse. The judgment
passed by the High Court, therefore, amou_nted to
H
THE DEPOT MANAGERA.P.S.R.T.C. v. P. JAYARAM 1187
REDDY
misdirection in law, and is set aside. [Para 13 and 18] A
[1191-F; 1192-C; 1194-G]
P. G. I. of Medical Education & Research, Chandigarh vs.
Raj Kumar (2001) 2 SCC 54; State of Rajasthan & ors. Vs.
Sujata Malhotra (2003) 9 SCC 286; J.K. Synthetics Ltd. vs.
K.P. Agrawal & Anr. (2007) 2 SCC 433; Amrit Vanaspati Co. B
Ltd. v. Khem Chand and Anr. (2006) 6 SCC 325 and
U.P.S.R. T.C. Vs: Ram Kishan Arora (2007) 4 SCC 627,
referred to.
2. It has to be taken into consideration that the
respondent did not join the service of the appellant c
pursuant to the award of reinstatement. He obtained an
alternative employment. However, the amount already
paid by way of back wages may not be recovered from
the respondent. [Paras 17 and 18] [1194-F-G]
Case Law Reference: D
(1992) 2 SCC 547 referred to Para 11
(2001) 2 SCC 54 referred to Para 14
(2003) 9 SCC 286 referred to Para 14
)
(2007) 2 SCC 433 referred to Para 15
(2006) 6 SCC 325 referred to Para 16 E
(2007) 4 SCC 627 referred to Para 16
CIVIL APPELAL TE JURISDICTION : Civil Appeal No.
7406 of 2008.
From the final Judgment and Order dated 30.9.2005 of the
High Court of Andhra Pradesh at Hyderabad in W.A. No. 2013 F
of 2004.
i Radha Rani, R. Santhana Krishnan, P. Vijaya Kumar and
D. Mahesh Babu for the Appellant.
R.V. Kameshwaran for the Respondent.
G
The Judgment of the Court was delivered by
S.B. SINHA, J.1. Leave granted.
2. Appellant is before us aggrieved by and dissatisfied
with a judgment and order dated 30.9.2005 passed by a
Division Bench of the High Court of Judicature of Andhra H
1188 SUPREME COURT REPORTS [2008) 17 S.C.R.
A Pradesh at Hyderabad in Writ Appeal No. 2013 of 2004
affirming a judgment and order dated 26.6.2003 passed by a
learned single judge of the said Court allowing the Writ Petition
filed by respondent herein challenging an award dated 9.8.1996
passed by the Presiding Officer, Labour Court II, Hyderabad
8 in Industrial Dispute No. 183 of 1993 to the extent it denies the
full back wages to the respondent.
3. The admitted fact of the matter is as under:
Respondent was appointed as a conductor of Siddipet
. Depot on casual basis. He was removed from service by an
C order dated 8.9.1987 for alleged commission of a misconduct
, relating to sale of tickets and other irregularities in respect
thereof. However, a notification in the mean time was issued
notifying 300 vacancies of conductors on 2.9.1987. The last
date for filing an application for appointment pursuant thereto
D was fixed as 14.9.1987. He applied for the said post and
eventually appointed by the appellant for its Zaheerabad Depot
which is said to be 200 kilometers away from Siddipet Depot.
4. Indisputably, respondent did not disclose that he had
earlier been removed from service on the charges of
E misconduct. His services were also regularized. However, later
on the Corporation came to learn that the respondent had
concealed the fact as regards his previous employment with it
and his removal therefrom. A charge sheet was issued.
Pursuant thereto, a ~epartmental proceeding was initiated. In
the said departmenta' proceeding, he was found guilty of the
F charges levelled against him. A second show cause notice was
issued to which respondent showed cause .. An order of removal
from service was issued on or about 27.4.1992. An appeal
preferred thereagainst was also dismissed by reason of order
dat~d 20.10.1992.
G 5. Respondent filed an application before the Labour Court
questioning the said order of removal as also the appellate
order in terms of Section 2-A(2) of the Industrial Disputes Act,
1947 (for short, "the Act") praying for setting aside the. order
of removal and reinstatement with all benefits of continuity in
H service and back wages. One of the objections taken by
THE DEPOTMANAGER A.P.S.R.T.C. v. P. JAYARAM 1189
REDDY {S.ff. SINHA, J.]
appellant before the Labour Court was that respondent had A
-
' ,.-> obtained employment upon concealing the facts of his previous
employment. By reason of an award, the Labour Court although
opined that the disciplinary proceeding held against the
respondent was valid and proper and the principles of natural
justice have been complied with, but relying on or on the basis B
of a decision of the Andhra Pradesh High Court dated
28.7.1987 that there being no column in the application form
for supply of information with regard to previous employment,
no misconduct can be said to nave been committed by the
employee in securing another employment, holding:
c
"The contention of the corporation that the proforma in that
fashion was notified nor requiring specifically to furnish
information
I
of the past employment of the candidate is
intended mainly for the fresh candidate but not in case of
an employee who was already removed for certain acts
of misconduct <?Ommitted and that the petitioner ought to D
have appealed to the high officials against his removal
) orders during the past employment for consideration but
not to apply for appointment as a fresh candidate, cannot
be accepted as rightly that when a particular information
was asked to be furnished there was no duty and E
responsibility cast on a candidate seeking for
employment. On an overall consideration of all the material
made available on record this court cannot persuaded
itself to accept the contentions of the respondent and to
justify the impugned removal orders in question before us F
l but on the other hand this Court is satisfied that the
impugned punishment of removal imposed on the
petitioner is very much harsh, disproportionate and
unjustified rendering itself liable to be set aside and
entitling the petitioner to be reinstated with all benefits
except with full backwages."
G
6. A writ petition was preferred thereagainst by the
~
respondent only contending that the benefit of payment of full
back wages was denied to him. A learned single judge of the
High Court of Judicature of Andhra Pradesh at Hyderabad,
H
1190 SUPREME COURT REPORTS . [2008] 17 S.C.R.
A allowed the said writ petition, opining:
"The order removing him from service having beeh rightly ·4
, - .,.
held invalid the petitioner ought to have been granted the
benefit of back wages too, for the period he was put out
of service illegally and without any jurisdiction.
8 On the above analysis the order of the Labour Court
in 1.0. No. 103/1993 dated 9.8.1998 to the extent it denies
the full back wages to the petitioner is unsustainable and
is set aside. It is brought to my notice by Sri Sai Ram '.1
Goud, learned counsel for the petitioner that the petitioner
c has .obtained employment in November, 1996 soon after
pronouncement of the award in 1.0. No. 103/1993 and
-----:--before publication of the award in G.O. Rt. No. 244 dated·
3.2.1997 and that this fact has been infor'med ·to the
respondent corporation. It is therefore very fairly contended
.0 by Sri Sairam Goud learned counsel for the petitioner that
the entitlement of the petitioner for back wages would be
only from 27.4.1992 to October 1996 the latter being the
month after which he had obtained alternative and gain f
employment and was therefore no longer in service of the
respondent corporation."
E
7. An intra court appeal preferred thereagainst by the
appellant, as noticed bereinbefq,re, has been dismissed by
reason of the impugned judgment.
8. Ms. Radha Rani, learned counsel appearing on behalf
F of the appellant would submit that in view of the fact thatthe
Labour Court refused to exercise its discretionary\jurisdiction )
in favour of the respondent in the, matter of grant of back wages,
the High Court should not have interfered therewith. ·
9. Mr. R.V. Kameshwaran, learned cou~sel appearing on
G behalf of the. respondent, on the ot~er hand, submitted that the
order of removal having been pflssed by the Corporation
ignoring the binrfl ng precedents of the decision of the High
-~
Court of Judicature of Andhra Pradesh at Hyderabad, no
interference with (he irl\pugned judgment is warranted.
H
10. Indisputably, the respon~ent was a casual employee.
THE DEPOT MANAGER A.P.S.R.T.C. v. P. JAYARAM 1191
REDDY [S.B. SINHA, J.]
His services were terminated on the charges of grave A
misconduct. However, he was again appointed in ignorance
,,_ ':,,J
c thereof. It is one thing to say that the respondent had no duty
to furnish information thereabout but it is another thing to say
that the order of appointment was passed in ignorance of the
fact that his services had been terminated on the charges of B
grave misconduct. The Labour Court did not arrive at a finding
that the order of removal was mala fide or was made in
colourable exercise of power or amounted to victimization of
~ the employee or at the instance of a rival union.
11. An order of removal from services has some c
consequences. It may not bar future employment but the nature
of the order and the consequences are reql!ired to be judged
keeping in view the entire factuatscen~seEDm@attaffaya-
Mahadev Nadkarni since deceased-by Hls~LRs. vs.
Municipal Corporation of Greater Bombay [(1992) 2 SCC
547). D
12. Although on general principle, an order of removal may
not bar future employment but indisputably the same would
)
mean causing vacation of office as a result of misconduct or
misbehaviour or any other similar cause. In a case where an
employee occupying .a position of trust is removed from the E
office, a loss of confidence in him may occur. Had.appellant,
therefore, any knowledge thereabout, the employee might not
have been reappointed at all.
13. The learned Presiding Officer, Labour Court
<. considered the entire matter. He opined that the punishment of F
removal from service imposed upon the respondent was 'very
much harsh, disproportionate and unjustified'. There is no
finding that the order of removal was wholly illegal and, thus,
void ab initio. As noticed hereinbefore, the validity and/or
legality of the domestic enquiry was upheld. The Labour Court G
in exercise of its power under Section 11 A of the Act may
substitute one punishment for the other in the event it comes
to the conclusion that the quantum of punishment is
disproportionate to the gravity of the misconduct wherewith the
delinquent employee was charged. It is one thing to say that H
1192 SUPREME COURT REPORTS [2008] 17 S.C.R.
A the order of reinstatement with back wages is a logical corollary
of a finding that the order of termination is wholly illegal and
without jurisdiction but it is another thing to say that the
punishment imposed being very harsh and disproportionate
and, therefore, was found to be unjustified. Whereas in the
8 former case, back wages may or may not be granted keeping
in view the facts and circumstances of the case but in the latter
the labour court may substitute one punishment for the other.
The award of the labour court belongs to the second category
of cases. If that be so, the High Court was bound to consider
as to whether it should interfere with such a discretionary
C jurisdiction exercised by the Labour Court. It has not been found
by the High Court that the discretionary jurisdiction exercised
by the labour court was otherwise arbitrary or perverse. It posed
unto itself a wrong question, namely, whether the respondent
was in gainful employment or not and not the right question,
D namely, whether the jurisdiction has lawfully been exercised or
not. The judgment and order passed by the High Court,
therefore, amounted to misdirection in law.
14. In P.G.I. of Medical Education & Research,
Chandigarh vs. Raj Kumar[(2001) 2 SCC 54], this Court held:
E "9. The Labour Court being the final court of facts came
to a conclusion that payment of 60% wages would comply
with the rf:}quirement of law. The finding of perversity or
being erroneous or not in accordance with law shall have
to be recorded with reasons in order to assail the finding
F of the Tribunal or the Labour Court. It is not for the High
Court to go into the factual aspects of the matter and there
is an existing limitation on the High Court to that effect. In
the event, however the finding of fact is based on any
misappreciation of evidence, that would be de~med to be
G an error of l~w which can be corrected by a writ of certiorari.
The law....,is well settled to the effect that finding of the
Labour Court cannot be challenge in a proceeding in a writ
of certiorari on the.ground that the relevant and material
evidence adduced before the Labour Court was insufficient
or inadequate though however perversity of the order
H
THE DEPOT MANAGER A.P.S.R.T.C. v. P. JAYARAM 1193
REDDY [S.B. SINHA, J.]
would warrant intervention of the High Court. The A
obseHation, as above, stands well settled since the
.. ~
decision of this Court in Syed Yakoob v. K. S .
Radhakrishna [AIR 1964 SC 477]"
{See also State of Rajasthan & ors. Vs. Sujata Malhotra
[(2003) s sec 286]} B
15. Reliance has however been placed by the learned
counsel for the respondent on a decision of this Court in J.K.
Synthetics Ltd. vs. K.P. Agrawal & Anr. [(2007) 2 SCC 433)
wherein it was held:
"20. But there are two exceptions. The first is where the c
court sets aside the termination as a consequence of
employee being exonerated or being found not guilty of the
misconduct. Second is where the court reaches a
conclusion that the inquiry was held in respect of a frivolous
issue or petty misconduct, as a camouflage to get rid of D
the· employee or victimize him, and the disproportionately
excessive punishment is a result of such scheme or
intention. In such cases, the principles relating to back-
)
wages etc. will be the same as those applied in the cases
of an illegal termination. E
21. In this case, the Labour Court found that a charge
against the employee in respect of a serious misconduct
was proved. It, however, felt that the punishment of
dismissal was not warranted and therefore, imposed a
lesser punishment of withholding the two annual F
increments. In such circumstances, award of back wages
was neither automatic nor consequential. In fact, back
wages was not warranted at all."
Thus, the said decision itself is an authority that grant of
back wages is not automatic. G
We may also notice that therein this Court emphasized that
the Courts or the Tribunals while directing reinstatement are
required to apply their judicial mind to the facts and
~-
circumstances to decide whether "continuity of service" and/or
"consequential benefits" should also be directed; and as H
1194 SUPREME COURT REPORTS [2008) 17 S.C.R.
A regards back wages whether the same should be awarded fully
or only partially would depend upon the facts and circamstances
of each case. The said decision therefore instead of assisting +-<' '
the case of the respondent, assists the-case of the appellant.
16. In Amrit Vanaspati Co. Ltd. v. Khem Chand and Anr.
B [(2006) 6 sec 325] this Court held:
I
"In our opinion, the High Court while exercising powers
under writ jurisdiction cannot deal with aspects like whether
the quantum of punishment meted out by the management
to a workman for a particular misconduct is sufficient or ¥
not. This apart, the High Court while exercising powers
c under the writ jurisdiction cannot interfere with the factual
findings of. the Labour Court which are based on
appreciation of facts adduced before it by leading
evidence. In our opinion, the High Court has gravely erred
in holding that the evidence of Respondent 1 was not
D considered by the Labour Court and had returned the
finding that the evidence of Respondent 1 did not inspire
any confidence. We are of the opinion that the High Court
is not right in interfering with the well- considered order
passed by the Labour Court confirming the order of --K
"
dismissal."
E {See also UP.SR. T.C. Vs. Ram Kishan Arora [(2007) 4
sec 627]}
17. We furthermore must take into consideration certain
subsequent events. Respondent did not join the services of
appellant pursuant to the award of reinstatement. He obtained
F an alternative employment in October 1996. He is still
continuing in the said job. He has already been paid a sum of ~
Rs.83,954/- by way of back wages. J
18. For the reasons aforementioned, the impugned
judgment of the High Court cannot be sustained, and is set
aside. The appeal is allowed accordingly. However, the amount
G of Rs.83,954/- already paid by way of back wages may not be
recovered from the respondent.
In the facts and circumstances of the case, there shall be
no order as to costs. ·+.
RP. Appeal allowed.
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