WP/17616/2009 of The Patancheru Municipality, Medak District, Vs M. Shanker, on 30 December 2009

COMMON ORDER:

All these writ petitions are filed by the Greater HyderabadMunicipal Corporation aggrieved by the awards passed by the LabourCourt-II, Hyderabad directing reinstatement of the respondents hereinwith continuity of service.

Though separate awards have been passed by the LabourCourt, since the respondents in all the writ petitions are similarlysituated and common question of fact and law arise for consideration,all these writ petitions are heard together and decided by this commonorder.

The respondents in these writ petitions were initially appointedas NMRs in the erstwhile Gram Panchayats situated in Medak District.It is not in dispute that the said Gram Panchayats were converted intoMunicipality vide G.O.Ms.No.579, M.A., dated 9.6.2005. Afterconversion of Gram Panchayat into Municipality, the services of therespondents were taken over by the Municipality and they werecontinued as NMRs. Alleging that from March, 2006 they were notallowed to discharge the duties, the respondents raised disputesbefore the Labour Court under Section 2-A(2) of the Industrial DisputesAct, 1947 (for short, ‘I.D. Act’). It was contended before the LabourCourt that the impugned termination without one month’s notice or payin lieu thereof was arbitrary and in violation of Section 25-F of the I.D.Act. It was also contended that the impugned termination was illegalsince no retrenchment compensation was paid as provided under theI.D. Act and at any rate the retrenchment itself was contrary to lawsince no seniority list as such was maintained by the Municipality.

It is to be noticed that vide G.O.Ms.No.260, MunicipalAdministration & Urban Development Department (Elec.II), dated16.04.2007, the Patancheru Municipality was abolished and thesame was merged into Greater Hyderabad Municipal Corporation.

In the circumstances, the Greater Hyderabad MunicipalCorporation (writ petitioner) filed counter-affidavits before the LabourCourt contending that since there was no appointment at all, theMunicipality/Corporation was not obligated to comply with theprovisions of the Industrial Disputes Act, 1947. It was also contendedthat in view of the ban in force on appointment of NMRs/Temporarydaily-wage employees under the Act 2 of 1994, the question ofcontinuing the petitioners does not arise at all.

After hearing both the parties, the Labour Court, by separateawards while setting aside the termination, directed reinstatement withcontinuity of service. However, the back-wages and attendant benefitswere rejected.

Challenging the said awards passed by the Labour Court, thesewrit petitions are filed by the Greater Hyderabad Municipal Corporation(for short, ‘Corporation’).

I have heard the learned Standing Counsel appearing for theCorporation in all the writ petitions as well as the learned counselappearing for the respondents (hereinafter referred to as ‘workmen’).

The learned Standing Counsel for the Corporation vehementlycontended that the impugned awards which were passed by theLabour Court without taking into consideration the specificcontentions raised on behalf of the Corporation that the I.D. Act itselfwas not applicable since the Municipality was not an industry areillegal and the awards are liable to be set aside on that ground alone. It is further contended that the burden of proof is on the workmen toshow that they fall within the definition of the “workman” under Section2 (s) of the I.D. Act and since in the present case the workmen failed todischarge the burden placed on them, the Labour Court ought not tohave granted any relief. In support of the said submission, the learnedStanding Counsel placed reliance upon RAJASTHAN STATEGANGANAGAR S. MILLS LTD. v. STATE OF RAJASTHAN[[1]].While relying upon the decision of the Supreme Court in M.D.,KARNATAKA HANDLOOM DEV. CORPN. LTD. v. MAHADEVALAXMAN RAVAL[[2]], the learned Standing Counsel further contendedthat the disengagement of the workmen was nothing but terminationsimplicitor and did not amount to retrenchment and therefore thesame cannot be held to be illegal for non-compliance with Section 25-F of the I.D. Act.

It is also contended that since the respondents were appointedpurely on contractual basis and they were fully aware of the nature oftheir employment, they did not have any right to regular or permanentappointment as held by the Supreme Court in SECY., STATE OFKARNATAKA v. UMADEVI (3)[[3]]and ACCOUNTS OFFICER (A&I), A.P. SRTC v. P. CHANDRA SEKHARA RAO[[4]].

On the other hand, the learned counsel appearing for therespondents submitted that the findings of fact recorded by the LabourCourt on appreciation of the evidence available on record warrant nointerference and the impugned awards granting the relief only to theextent of reinstatement cannot be held to be unjustified on any groundwhatsoever.

It is to be noticed that admittedly there was no appointmentorder nor there was any order in writing terminating the services of therespondents/workmen. However, the fact that therespondents/workmen worked for about 14 years and that they werepaid salaries directly by the Municipality till their services weredisengaged is not in dispute. The specific case of the respondents intheir counter-affidavit that sufficient work is available and that therespondents are continuing in service even as on today throughoutsourcing agencies could not be disputed by the Corporation.

The contention of the learned Standing Counsel that theMunicipality is not an “industry” and therefore the Labour Court oughtto have dismissed the industrial disputes as not maintainable cannotbe accepted having regard to the ratio laid down by the larger Bench ofthe Supreme Court in BANGALORE WATER SUPPLY &SEWERAGE BOARD v. A. RAJAPPA[[5]].

So far as the merits of the case are concerned, it is to benoticed that the workmen who raised the disputes got themselvesexamined as W.W.1 in each case. On behalf of the Corporation M.W.1was examined and Acquittance Registers and Attendance Registerswere marked as Exs.M-2 & M-3 respectively through M.W.1. Onappreciation of the oral as well as documentary evidence adduced byboth the parties, the Labour Court recorded a finding that thetermination of the services of the petitioners therein who had put inmore than 14 years of service without issuing any notice was contraryto law.

The Labour Court also found that the workmen/respondentsherein worked for not less than one year under the Municipality andthus they were entitled to one month’s notice in writing indicating thereasons for retrenchment or in the alternative they must be paid wagesin lieu of such notice. Admittedly neither such notice was issued nor they were paid the wages in lieu of notice. In the circumstances, theLabour Court held that the termination of the respondents was badand accordingly set aside the same.

As could be seen from the impugned awards, the findings wererecorded on appreciation of the evidence on record and cogentreasons were assigned by the Labour Court in support of theconclusions. It is not a case where the Labour Court failed to take intoconsideration any material evidence nor can it be said that theTribunal misread the evidence available on record. Since the findingsso recorded are not vitiated by perversity or want of evidence, thisCourt, in exercise of the jurisdiction under Article 226 of theConstitution of India will not re-examine the question of adequacy orinadequacy of the material placed before the Labour Court. The lawis well-settled that even where two views are possible on the sameevidence, this Court does not substitute its opinion to that of theLabour Court when the findings of the Labour Court are found to bebased on the evidence available on record. Hence, I do not find any justifiable reason to interfere with the findings of factrecorded by the Labour Court.

So far as the contention of the learned Standing Counsel thatthe burden of proof is on the workmen to establish that they workedfor 240 days is concerned, it is true that it was so held by theSupreme Court in RANGE FOREST OFFICER v. S.T. HADIMANI[[6]].However, this is a case where both the parties let in evidence and M.W.1 who was examined on behalf of the Management\Municipality admitted in his evidence that the workmen were appointed by theCollector under Ex.M-1 proceedings, that they were working under the direct control of the Municipality till their termination and that they werealso paid the salaries from the office of the Gram Panchayat and theMunicipality. M.W.1 also produced bunch of Acquittance Registersmarked as Exs.M-2 and M-3 which contained the particulars of salarypaid to the workmen. The above evidence being sufficient to holdthat the respondents herein worked for more than 240 days in the yearpreceding their termination, the Labour Court had rightly recorded afinding in favour of the workmen. Once the evidence is let in on behalfof both the parties, it is open to the Court/Tribunal to record findings onappreciation of the entire evidence available on record and at thatstage it is not necessary to insist upon the theory of burden of proof.

M.W.1 in his evidence also admitted the fact that there was noprior notice as required under Section 25-F of the I.D. Act. From theabove evidence, since it was clear that there was employer andemployee relationship between the Municipality/management and theworkmen and that they worked for more than 240 days preceding theirtermination and more particularly their termination was not inaccordance with Section 25-F, the impugned awards directingreinstatement with continuity of service cannot be held to be arbitraryor illegal on any ground whatsoever. It is also relevant to notice thatthe respondents were denied back-wages and attendant benefits inthe facts and circumstances of the cases.

The two decisions cited by the learned Standing Counselnamely UMADEVI (3)’S case (3 supra) and P. CHANDRA SEKHARARAO’S case (4 supra) in which the Supreme Court was dealing withregularization of the services of the workmen who were appointed ontemporary basis have no application at all to the instant cases sincethe petitioners raised the industrial disputes aggrieved by thetermination of the services and the relief sought by them was onlycontinuation of their service but not regularization.

For the aforesaid reasons, all the Writ Petitions are devoid ofany merit and the same are accordingly dismissed. No costs.

Date:30.12.2009 gbs

[1](2004) 8 SCC 161(2004) 8 SCC 161

[2]AIR 2007 SC 631

[3](2006) 4 SCC 1(2006) 4 SCC 1

[4](2006) 7 SCC 488(2006) 7 SCC 488

[5]AIR 1978 SC 969 = (1978) 2 SCC 213AIR 1978 SC 969 = (1978) 2 SCC 213

[6](2002) 3 SCC 25(2002) 3 SCC 25

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G. ROHINI, J.