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U.P.S.R.T.C. v. Parshu Ram Sharma - WRIT - C No. 21854 of 1999  RD-AH 20793 (8 December 2006)
Civil Misc. Writ Petition No. 21854 of 1999
U.P.S.R.T.C Etawah through its Regional Manager Versus Parshu Ram Sharma and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
This writ petition is directed against the award dated 22.7.1998 given by Presiding Officer Labour Court II U.P. Kanpur in adjudication case No. 296 of 1994 declaring termination of services of respondent No.1 and directing his reinstatement with full back wages.
Original respondent No.1 Parshu Ram Sharma (since deceased and survived by legal representatives) was a driver in the petitioner corporation. The allegation against him was that on 30.10.1992 he came in drunk state on his job and was found lying in rest house. He could not be given the duty of driving the bus, which he was to drive on the said date and instead of him some other driver was deputed to drive the said bus. Disciplinary proceedings were initiated against respondent No.1 after suspending him. Enquiry Officer on 24.4.1993 gave the report acquitting the respondent No.1 of the charge. However, the employer did not agree with the report and issued show cause notice to respondent No.1. Respondent No.1 gave his reply. Thereafter punishing authority, completely disagreeing with the report of the enquiry officer, passed the order of termination of respondent No.1 on 31.12.1993, which led to the aforesaid adjudication case.
Unfortunately the copy of the punishment order has not been annexed. Even learned counsel are not possessed of the copy of the said order. In para 10 of the award, Labour Court has mentioned that punishment order was passed without considering or mentioning the ground on which Enquiry Officer had acquitted respondent No.1. In certain circumstances punishing authority may disagree with the finding of acquittal recorded by the Enquiry Officer however specific reasons are required to be recorded in that regard. If punishing authority does not take into consideration the points taken by the Enquiry Officer then it can not take different view. As the punishment order and the report of the enquiry officer are not before the court hence the statement of the Labour court that the points taken in the report of the enquiry officer was not discussed in the punishment order is taken to be correct. Accordingly no fault can be found with the impugned award of the Labour Court in respect of reinstatement.
It is important to note that in this writ petition conditional stay order was granted directing the employer to pay current wages to respondent No.1. In respect of back wages through interim order dated 26.5.1999, it was directed that 50% of the back wages payable under the award should be deposited with the concerned Industrial Tribunal within two months. It has been stated that workman was reinstated and 50% backwages were deposited with the concerned Industrial Tribunal. Workman respondent No.1 retired after reaching the age of superannuation on 31.3.2001.
The Labour court through the impugned award directed payment of full backwages. However, in view of several recent authorities of Supreme Court, it is not always essential to award full backwages alongwith reinstatement vide Haryana SEDC Vs. Mamni AIR 2006 SC 2427 and U.P. State Brassware Corporation Vs. U.N.Pandey 2006 (1) SCC 479.
In this regard it is also to be seen as to whether workman was gainfully employed anywhere else or not after termination of service. The burden to prove the said fact lies upon the workman. In the instant case workman did not adduce any evidence in that regard.
Accordingly impugned award is confirmed in respect of reinstatement however it is modified in respect of backwages.
It is directed that workman (his legal representatives after his death) are entitled to 50% backwages. As 50% of backwages has already been deposited with the Industrial Tribunal concerned hence the same be paid to the legal representatives of the workman.
Accordingly writ petition is disposed of.
As order of reinstatement passed by the Labour court is confirmed hence it is needless to add that legal representatives of workman are entitled to all retrial benefits which were admissible to the workman and which are admissible to them after the death of the workman.
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