WP/20751/1995 of A.P. State Construction Corporation Limited Vs S Yakub on 26 December 2006

ORDER:

In this writ petition the order of the Industrial Tribunal-cum-Labour Court, Warangalpassed in E.P.No.34 of 1991 dated 19.11.1994 is questioned.

Respondents 1 and 2 were engaged by the first petitioner, A.P. State Construction Corporation Limited, Khammam (for short “the Corporation”) as NMRs on daily wagebasis in the year 1977 and they were allowed to work upto 6.8.1979 as WinchOperators. Their services were terminated with effect from 6.8.1979. They along with46 others raised industrial dispute registered as I.D.No.304 of 1986 before theIndustrial Tribunal-cum-Labour Court, Warangal (for short ‘the Tribunal’). Before theTribunal the contention of respondents 1 and 2 was that while retaining their juniors,they were retrenched thereby violating the principle ‘last come first go’. The Tribunalwithout adjudicating the said issue disposed of the I.D., with certain directions. It isrelevant to note in this context that during the pendency of the said ID the firstpetitioner Corporation was taken over by the Government therefore petitioners 2 and3 came on record. The directions given in the award were to the effect that the firstpetitioner shall decide after hearing all the parties whether juniors to respondents 1and 2 and other similarly situated persons were retained while retrenching the latter.If the answer is in the affirmative, respondents 1 and 2 and other seniors should betreated to be continuing in service in spite of retrenchment and regularize theirservices as and when they are entitled to and fix their seniority. They shall also beentitled to enhanced wages, if any, from the date of the award.

As the petitioners failed to take follow up action in pursuance of the directionscontained in the said award, the respondents 1 and 2 moved the Tribunal by way ofExecution Petition No.34 of 1991. The petitioners filed a counter on 28.12.1991wherein they have requested for grant of two months time to implement the award.As they failed to implement the award within the said time undertaken by them, theTribunal passed an order on 5.1.1993 directing implementation of the award assought for in the execution petition. As the petitioners further failed to comply withthe said directions, the Tribunal passed orders on 16.7.1993 attaching certainproperties and the said order was questioned by the petitioners in W.P.No.13876 of1993 before this Court. The said writ petition was disposed of by directing theTribunal to dispose of the execution petition within three months from the date ofreceipt of the order in the writ petition. Following the said direction of this Court, theTribunal held enquiry and after hearing the parties before it, passed the ordersimpugned in this writ petition.

The Tribunal albeit the fact that the proceedings before it were only executionproceedings held a detailed enquiry in order to ascertain the fact whether thepetitioners have violated the principle ‘last come first go’, by retaining the juniors andretrenching seniors. On behalf of the respondents 1 and 2, W.W.1 was examinedand Exs.W1 to W.7 were marked. While no oral evidence was adduced for thepetitioners, Exs.M1 to M12 were marked. After detailed consideration of the oralevidence and the material available on record, the Tribunal held that whilecontinuing certain juniors, seniors like respondents 1 and 2 were retrenched. TheTribunal referred to the case of one K.Narayana, who was admittedly junior torespondents 1 and 2. The Tribunal in this regard relied upon the admission of M.W.1that K.Narayana, who was working even after the retrenchment of respondents 1and 2, was junior to respondent No.1. The Tribunal has not believed the version ofthe petitioners that Narayana was retrenched along with respondents 1 and 2 butwas again reappointed in February 1982 as the petitioners failed to produce anyrecord to that effect. The Tribunal further held that the petitioners deliberatelysuppressed the documents, which were directed to be produced by them and it hasdrawn adverse inference that had those documents been produced they would havedefinitely established that while continuing the juniors of the respondents 1 and 2,the latter were retrenched. The Tribunal also held that the burden lies heavily on thepetitioners to establish the fact that they have not retained any of the juniors whileretrenching the seniors and the petitioners failed to discharge the said burden.

On the strength of the aforementioned findings, the Tribunal directed reinstatementof respondents 1 and 2 and that they should be treated as continuing in service. Afurther direction to regularize their services as and when they are entitled to and tofix their seniority along with enhanced wages if any was given. The petitioners werealso directed to file calculation memos giving the details of the back wages for whichrespondents 1 and 2 are entitled to as per the award.

Heard learned Government Pleader for the petitioners and Sri A.K.JayaprakashRao, learned counsel for respondents 1 and 2.

Learned Government Pleader submitted that the findings recorded by the Tribunalare contrary to record. He contends that the petitioners have retrenched the surplusstaff strictly following the principle ‘last come first go’ and that none of the juniors ofrespondents 1 and 2 were retained while the latter were retrenched. SriA.K.Jayaprakash Rao on the other hand supported the order of the tribunal.

Having considered the rival pleas of the learned counsel appearing for the parties, Iam of the view that the findings of fact recorded by the executing Tribunal do not callfor any interference by this Court exercising writ jurisdiction. The Tribunal, on theearlier occasion disposed of the industrial dispute with directions to the petitioners todecide whether they have violated the principle ‘last come first go’ while retrenchingthe surplus workmen. Since the petitioners failed to decide the said issue, theexecution petition was filed which ultimately lead to the passing of the order which isunder challenge. The petitioners, as observed by the Tribunal, failed to produce therelevant records despite directions given in this regard in E.A.No.117 of 1994 filedby the respondents 1 and 2 seeking production of the documents mentioned thereinnamely compensation receipts paid to the workmen on 6.8.1979 and the nominalmuster roll of N.M.R. Winch Operators from 1.6.1976 to 6.8.1979. Neither a counteraffidavit was filed by the petitioners in the said E.A. nor the documents wereproduced, forcing the Tribunal to pass an order, closing the E.A. with an observationthat an adverse inference will be drawn against the petitioners for non-filing of thedocuments. The absence of the production of record coupled with the fact thatadmittedly one K.Narayana, who was junior to respondents 1 and 2, was continuedeven after the retrenchment of respondents 1 and 2 justified the Tribunal to arrive atthe conclusion that retrenchment of respondents 1 and 2 was in violation of theprinciple ‘last come first go’. The Tribunal was therefore justified in granting the reliefsought for the in the E.P. The said order therefore does not suffer from any errorwarranting interference by this Court exercising its writ jurisdiction.

For the aforementioned reasons, the writ petition is devoid of any merit andaccordingly it is dismissed.

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C.V.NAGARJUNA REDDY,J

Mdaa.