Depot Manager, APSRTC vs S.G. Moinuddin and Another

This writ petition is filed against the order of the Labour Court, Warangal in M.P. No. 162/1987.

The first respondent herein filed the said M.P. u/s 33C(2) of the Industrial Disputes Act claiming back wages at the rate of Rs. 160/- per month for a period of 20 years from January 1, 1967 to September 30, 1987. The first respondent herein was a conductor attached to Nirmal Depot of Andhra Pradesh State Road Transport Corporation (for short ''APSRTC''). A total sum of Rs. 38,512/- was claimed by him. In the petition, it is stated that on September 9, 1967, on the basis of a check of the bus which he was conducting, a Charge Memo was issued and without conducting an enquiry, a charge-sheet-cum-show cause notice was issued proposing removal from service on April 11, 1968, that he submitted the explanation thereto, but no further action was taken thereafter and that no duties were assigned to him. He further stated that he did not receive the order of removal from service. He, therefore, claimed back wages on the footing that he continued in service.

It is seen from the record of the Labour : Court that after the petition was registered on October 7, 1987, it was posted for appearance and counter on November 4, 1987; on that day, an advocate filed vakalat for workman. The respondent was absent; then, it was directed to be posted on December 14, 1987 for counter. On December 14, 1987, the following cryptic order was passed by the Labour Court:

"This is a petition filed by the workman u/s 33C(2) of the I.D. Act against the management for computing the amount due by the management and directing to pay Rs. 38,511-99 Ps.

Respondent is absent. No counter is filed. Record Assistant, Legal Cell is present. He kept quiet. The respondent is ordered to pay the amount claimed in the petition".

Thus it is seen that within two months after the notice was served to the respondent in M.P., the petition was disposed of ex parte in view of the failure of the Management to file counter on the very first occasion. After the E.P., was filed by the workman, the petitioner-Management then filed an application to set aside the ex parte order on August 10, 1987(sic., 1988). In the affidavit; filed in support of the I. A., the Depot Manager stated that he had to suddenly leave for his native place on leave on February 14, 1987 and December 15, 1987 on account of serious illness of a member of his family and therefore he could not attend the Court on December 14, 1987 on which date the impugned order came to be passed. This application was returned on August 16, 1988 inter alia with an objection that Nirmal Depot was not within the jurisdiction of the Labour Court, Warangal, which is an untenable reason. As the order in the main petition was passed by the Labour Court, Warangal, the restoration petition could have also been entertained and disposed of by the same Court. Thereafter, the present writ petition was filed.

In the affidavit filed in support of the writ petition, it is stated that on the check of the bus it was detected that the first respondent-Conductor failed to issue tickets to 53 passengers though he collected fare from 49 passengers and he also behaved rudely with the checking staff. It is further stated that the workman in his explanation on December 20, 1967 totally denied the allegations and therefore, a domestic enquiry was conducted. The Enquiry Officer found him guilty of the charges on the basis of the admissions of the workman himself. Thereafter, a charge-sheet-cum-show cause notice was issued on April 11, 1968. To this, the father of the first respondent sent a letter dated April 24, 1968 to the Depot Manager, Nirmal informing him that his son was undergoing treatment in the Government Hospital for Mental diseases, Hyderabad and he was not well and he requested the case to be kept pending till he became alright. It is further stated that on June 19, 1968, the Depot Manager directed the first respondent to submit his explanation for which there was no response. It is however not averred in the affidavit that any final order was passed removing the workman or otherwise. Be that as it may, after a lapse of 19 years, the petition was filed u/s 33C(2) of the Industrial Disputes Act without giving an explanation for this inordinate delay, though delay by itself is not a ground to refuse relief u/s 33C(2).

In the back ground of the above facts, the question that arises is whether it is a fit case to set aside the ex parte order and remit the matter back to the Labour Court for fresh disposal. Considering the fact that this (sic. there) was a good reason for non-attendance of the Depot Manager or his representative on December 14, 1987 taken in conjunction with the fact that the ex parte order came to be passed on the very first occasion on which the matter should have been contested by the Management and the perfunctory manner in which the order was passed, we are of the view that it is a fit case to set aside the impugned order. Moreover, we should take note of the fact that the first respondent made a false allegation in the petition that no enquiry was conducted and he has also suppressed the reply sent by his father. We cannot also ignore the fact that the first respondent was mentally not alright and was not in a position to discharge his duties atleast for some period and therefore, backwages cannot be awarded for the entire period. Of course, it depends upon the proof of relevant facts, but we are expressing this prima facie view for the reason that the averments in the affidavit filed by the Depot Manager remain unrebutted as the first respondent has not appeared and filed the counter. Even assuming that the Management failed to take steps to contest the matter on December 14, 1987, the Labour Court should have proceeded ex parte by examining the petitioner or by allowing him to file the relevant documents instead of merely going by the bald averments in the petition. Thus, much can be said against the manner in which the petition was disposed of by a cryptic order. The learned Presiding Officer of the Labour Court failed to take note of the fact that the application was filed after 19 years and in view of this long passage of time atleast one more opportunity should have been given to the Management to file counter and to adduce the evidence. It is not as if none represented the Management on the crucial day. The Legal Assistant was present, but he could not make any representation, obviously on account of non-receipt of instructions from the Depot Manager who proceeded on leave unexpectedly on that date. We are, therefore, of the view that in the interests of justice, the impugned order has to be set aside and the matter has to be remitted for de novo disposal. If the Labour Court, Warangal is no longer having jurisdiction over Nirmal Depot., the case shall be transferred by the Presiding Officer of the Labour Court. Warangal to the Labour Court having jurisdiction.

Pending disposal of the writ petition 1/3rd of the backwages were directed to be deposited and the first respondent was permitted to withdraw the amount. Having regard to the fact that the Management was not diligent in taking further steps after the ex parte order was passed, we consider it a fit case to direct that irrespective of the ultimate order that may be passed by the Competent Labour Court pursuant to this remand order, the amount drawn by the respondent shall not be recovered.

The Writ Petition is allowed with the above directions.