1. This petition seeks writ in the nature of direction to the 2nd respondent to pay back wages in full and the attendant benefits to the petitioner after quashing the award, dated 26th July, 1978 passed by the Labour Court, Hyderabad. The circumstances under which this writ petition came to be filed may be noticed :
2. The petitioner was working as a Conductor in the Andhra Pradesh State Road Transport Corporation. While so, a charge sheet was served on 23rd December, 1971 framing three charges. Due enquiry was conducted and later he was removed from service. It was then contest by the petitioner on reference to the Labour Court wherein the question posed was whether the management of the Corporation is justified in terminating the service of the petitioner. The Labour Court on the detailed evidence and also the material on record, eventually held that the removal order was bad and therefore directed the Corporation to reinstate the petitioner in service however, without back wages or attendant benefits. So this writ petition.
3. The only question to be determined is, having ordered the reinstatement whether the Labour Court ought to have also directed the payment of full back wages with attendant benefits. The decision relied on by the learned counsel for the petitioner is Hindustan Tin Works Pvt. Ltd. v. Employees' [1978-II L.L.J. 474], wherein the Supreme Court held at para 9 at p. 477.
'It is no more open to debate that in the field of Industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be n service. The spectre of common law doctrine that contract of personal service cannot be specifically inforced or the doctrine of mitigating of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in the breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the grant of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman could be subjected to a sort of penalty for no fault of his and it is wholly underserved. Ordinarily, therefore, workman whose service has been illegally terminate would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workman's demand for revision of wages, the termination may well amount to unfair labour practice.'
4. Further held - at para 12
'If the normal rule in a case like this is to award full back wages, the burden will be on the appellant employer to establish circumstances which would permit a departure from the normal rule'.
The case on which reliance was placed by the learned counsel for the respondent - Corporation is a decision of this court in M/s. Sri Venkatachalapathy Mills v. The Industrial Tribunal, A.P. Hyderabad (1971 APHC Notes page 12) wherein it is held -
'In assessing the loss or damage, if the employee who claims damage has not made any effort to secure another job or he was employed elsewhere during the crucial period, then he would not be entitled to damages claimed by him although he may be entitled to some nominal damages. Thus in order to successfully claim damages for wrongful dismissal, it is for the employee to show that he was not employed during the period for which he is claiming the compensation or although employed was not getting the same remuneration which he would have got if his service had been continued which was wrongfully terminated. He must also show that he made honest efforts to secure a job thus mitigating the loss which he suffered. It is only when he makes such assertions in the claim that the question of awarding back wages would arise'.
5. The normal rule as per the decision of the Supreme Court cited (supra), is that whenever reinstatement is ordered the payment of full back wages and the attendant benefits also will have to be ordered. However, on directing such payment the earnings, if any, in the meantime made by the employee will have to be taken into reckoning for the purpose of assessing the payments to be made. But, the question is who should actually establish, the employee whether has made efforts to earn during the period of enquiry. In this case, happily, for this court, there is a finding recorded by the Labour Court in para (7) of its order which is as under :
'There is no evidence except filing Ex. W-1 the registration card of the Employment Exchange by the petitioner to show that he was unemployed and that inspite of his best efforts to minimise the loss of his earning from the date of suspension till to-day he could not get job'.
6. The employee has made all his attempts. Despite that, he was not gainfully employed. There was no evidence on behalf of the Corporation to demolish the case of the employee. Therefore, there is no alternative for this court but to issue a writ as prayed for directing the Corporation to pay full back wages with attendant benefits right from the date of the removal down to the date of reinstatement.
7. The writ petition is accordingly allowed. No costs.
8. Writ Petition Allowed.