THE HONBLE SRI JUSTICE L.NARASIMHA REDDY AND THE HONBLE SRI JUSTICE A.V.SESHA SAI WRIT APPEAL No.1319 of 2006 18-12-2014 The Managing Director, APSRTC and another. .Appellants Sri G.Balaswamy and another..Respondents

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY AND THE HONBLE SRI JUSTICE A.V.SESHA SAI                

WRIT APPEAL No.1319 of 2006  

18-12-2014
       
The Managing Director, APSRTC and another. .Appellants  

Sri G.Balaswamy and another..Respondents  

Counsel for the appellants: Sri Dande Radhika

Counsel for respondents: G.P. for Labour &
                          Sri V.Narasimha Goud

<GIST:

>HEAD NOTE:  

? Cases referred:
1. 2004 SC (L&S) 83

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY        
AND
THE HONBLE SRI JUSTICE A.V.SESHA SAI      
WRIT APPEAL No.1319 of 2006  

JUDGMENT: (Per LNR,J)  

        Feeling aggrieved by the dismissal of W.P.No.21598 of 2006,
the petitioners therein filed this writ appeal.
        The 1st respondent herein was working as a Mechnical
Supervisor with the appellants.  He was issued a charge sheet, dated
02.06.1995 alleging the act of misconduct of unauthorised absence.
After conducting departmental enquiry, the appellants removed the
1st respondent from service through order, dated 29.09.1995.  The
departmental appeal was rejected on 22.05.2000.
        The 1st respondent filed I.D.No.181 of 2000 before the Labour
Court-III, Hyderabad under Section 2-A(2) of the Industrial Disputes
Act, 1947 (for short the Act).  Through award, dated 13.03.2003,
the Labour Court has set aside the order of removal and directed
reinstatement into service with backwages from the date of removal
till the date of reinstatement.  The said award was published on
16.06.2003.
        The 1st respondent was reinstated into service on 10.08.2005.
Claiming that he was entitled to be paid backwages from the date of
expiry of 30 days from the date of publication of the award till the
date of reinstatement into service, the 1st respondent filed M.P.No.15
of 2005 before the Labour Court under Section 33(C)(2) of the Act.
It was pleaded that though he reported to duty, soon after the expiry
of 30 days from the date of publication of the award, the appellants
did not take him into service and on the other hand, they took the
plea that they did not receive the copy of the award; and he was
reinstated only on 10.08.2005.
        The appellants filed a counter affidavit in the M.P.  Their plea
was that the 1st respondent herein did not report to duty and it was
only in February 2005, he made a representation and on
04.08.2005, he got issued a notice through an Advocate and soon
thereafter, he was reinstated into service.
        The Labour Court allowed the M.P. through order, dated
02.06.2006 directing the appellants to pay backwages for a period of
two years aggregating to Rs.1,06,620/-.  The said order was
challenged by the appellants by filing the writ petition.  Learned
Single Judge dismissed the writ petition, taking note of the judgment
of the Honble Supreme Court in APSRTC vs. B.Vikram Reddy .
Hence, this writ appeal.
        Heard learned counsel for the appellants and learned counsel
for the respondents.
        The 1st respondent was removed from service on the ground of
misconduct.  However, the order of removal was set aside by the
Labour Court through its award in I.D.  The award became final and
the 1st respondent was also reinstated into service.  However,
claiming the backwages for the period between the date on which
the award became operational and the date on which he was
reinstated into service, the 1st respondent initiated proceedings under
Section 33(C)(2) of the Act.  The Labour Court allowed the
application by observing that there was no justification for the
appellants in not reinstating the 1st respondent into service.
        It is true that in Vikram Reddys case (1 supra), the Honble
Supreme Court held that an employer would be under obligation to
reinstate an employee into service, once the award is published and
became operational.  However, one sentence in that judgment
becomes relevant, which reads:
        In the absence of any material on record to show as to
why the corporation could not implement the award, the
respondent is justified in getting full wages from 21.6.1997 till
reinstatement is effected    

        An employee would no doubt get a right to be reinstated into
service on expiry of 30 days from the date of the publication of the
award, unless it is stayed by the Court of competent jurisdiction.
However, for reaping the benefit of the award, the employee must be
present.  It is not uncommon that on being removed or dismissed
from service, the workman would take up other employment or he
may be otherwise engaged.  It is only when he presents himself
before the employer, armed with the award, that a possibility would
exist for the employer to take him into service.  Verification of
physical condition and other job requirements is another aspect.  If
the employee himself does not turn up, for his own reasons, the
obligation for the employer to pay the wages under the award for the
period posterior to the award became operational does not arise.
          In the instant case, the first evidence of the respondent
appearing before the appellants claiming the benefit of reinstatement
is the representation dated 03.02.2005.    If there existed any other
evidence to show that the 1st respondent approached the appellants
on any date anterior to that, the obligation would commence from
that date.  Unfortunately, in this case, the Labour Court did not
record any finding as to when the 1st respondent approached the
appellants for reinstatement.  Strictly speaking, it is a matter for
remanding on that account.  However, it is brought to the notice of
this Court that the appellants have since paid the wages as directed
by the Labour Court in the order in the M.P.  If that be so, the
appellants shall not be entitled to recover them.  If on the other hand,
the amount was not paid, they shall not be under obligation to pay it.
        The writ appeal is accordingly disposed of, with the above
observation.
        The miscellaneous petition filed in this writ appeal shall also
stand disposed of.  There shall be no order as to costs.
________________________  
L.NARASIMHA REDDY, J    
_________________  
A.V.SESHA SAI, J
Date: 18.12.2014