WP/22414/1999 of The Director of Social Welfare Department, Vs Industrial Tribunal cum-Labour Court, on 30 December 2008

COMMON ORDER:-

In these two writ petitions the parties and the subject matterare common. Hence, they are being heard and disposed oftogether by a common order. For convenience, they are referredto as they are arrayed in WP.No.19614 of 1999.

Heard Sri V. Sudhakar Reddy, learned counsel for thepetitioner and the learned Assistant Government Pleader forrespondent Nos.1 and 2.

The petitioner was engaged as a cook on daily wage basisin the social welfare department of Gullaseetharamapuram (forshort, ‘G.S.Puram’) in the year 1987. He claimed that as hecompleted five years of continuous service by 25.11.1993, hisservices were regularized in terms of G.O.Ms.No.212, dated22.04.1994. According to the petitioner, he was removed fromservice with effect from 01.01.1995 without notice and payment ofcompensation. He, therefore, raised an industrial disputeregistered as I.D.No.24 of 1995 before the Industrial Tribunal-cum-Labour Court, Visakhapatnam, respondent No.3 herein (for short,‘the Labour Court’).

Respondent Nos.1 and 2 filed a counter in the said dispute,wherein they admitted that the petitioner worked as cook in theboys hostel, G.S. Puram, as daily wage worker from 01.01.1988 to 24.04.1988 for a period of 114 days and from 13.06.1988 to09.09.1988 for a period of 89 days. It is their further case that thepetitioner has not worked from 10.09.1988 to October, 1992 andthat he was not sponsored by the employment exchange. Theyalso denied the petitioner’s claim that his services wereregularized in terms of G.O.Ms.No.212, dated 22.04.1994.

Both the parties adduced oral and documentary evidencebefore the Labour Court. The petitioner filed Exs.W1 and W2,which pertain to proceedings dated 27.07.1994, which have beenissued by the Deputy Director, Social Welfare, Srikakulam,purporting to regularize the services of the petitioner as cook inG.S.Puram. The petitioner also filed Ex.W3, service certificateissued by the Warden of the Government Boys Hostel,G.S.Puram, showing that he worked for 313 days from 11.09.1987to 09.09.1988.

On the basis of the evidence adduced before the LabourCourt, it has given the finding that the evidence produced by thepetitioner proved that he worked as claimed by him as a cook ondaily wage basis. Accordingly, it held that the order ofretrenchment of the petitioner was illegal and contrary to theprovisions of Section 25-F of the Industrial Disputes Act, 1947 (forshort, ‘the Act’) and directed the respondents to reinstate thepetitioner with full backwages and continuity of service.

The petitioner filed WP.No.19614 of 1999 complaining ofnon-implementation of the said award while respondent Nos.1 and2 filed WP.No.22414 of 1999 questioning the award of the LabourCourt.

At the hearing, Sri V. Sudhakar Reddy, learned counsel for

the petitioner submitted that after filing of WP.No.19614 of 1999and in pursuance of the interim order granted by this Court,respondent Nos.1 and 2 implemented the award to the extent ofreinstating the petitioner and that in view of the stay, respondentNos.1 and 2 have not paid backwages.

Learned Assistant Government Pleader for respondentNos.1 and 2 strongly contended that the impugned award is liableto be set aside as the petitioner failed to produce evidence to showthat he worked beyond 09.09.1988 and had put in 240 man days. He also submitted that though respondent Nos.1 and 2 have raisedthe contention that no regularization order was passed, the LabourCourt failed to advert to the said contention. Sri V. SudhakarReddy, learned counsel for the petitioner opposed thesecontentions and sought to sustain the award.

I have carefully considered the submissions of the learnedAssistant Government Pleader. As regards the first contention,the Labour Court took note of the fact that respondent Nos.1 and 2have failed to produce the musters, which would have clinchinglydecided the issue. The Labour Court also relied on Ex.W3, thecertificate issued by the Warden in support of the claim of thepetitioner. As respondent Nos.1 and 2 failed to produce therecord, the Labour Court has rightly drawn the adverse inference. Having regard to the evidence produced by the petitioner, theLabour Court has come to the conclusion that the petitionerworked for not less than 240 days and therefore his retrenchmentin violation of Section 25-F of the Act is illegal.

This Court, while exercising the power of judicial reviewunder Article 226 of the Constitution of India, is not expected to re-appreciate the evidence and substitute its view. As I am satisfied that the findings of the Labour Court are based on legal evidence,the first contention of the learned Assistant Government Pleader isliable to be rejected.

As regards the second contention, I do not find any merit init either. The issue of petitioner’s regularization has no bearing onthe issue whether the provisions of Section 25-F of the Act are required to be followed or not. Irrespective ofthe status of the petitioner, when once it is found that he has put inthe required number of man days to attract Section 25-F of theAct, the further question whether his claim that his services wereregularized or not, pales into insignificance. In this view of thematter, the second contention cannot be sustained.

Learned Assistant Government Pleader finally submittedthat award of backwages is not justified. The learned counsel forthe petitioner fairly submitted that his client is prepared to forego50% of the backwages. In view of this submission, the award ofthe Labour Court is modified by reducing the backwages to 50%.

Accordingly, both the writ petitions are disposed of. Respondent Nos.1 and 2 shall deposit 50% backwages within aperiod of eight weeks from the date of receipt of a copy of thisorder.

As a sequel to disposal of both the writ petitions,WPMP.No.28091 of 1999 in WP.No.22414 of 1999 is disposed ofas infructuous.

Date: 30.12.2008ES

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C.V.NAGARJUNA REDDY, J