IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE THIRTEENTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSICE B. PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G. BHAVANI PRASAD WRIT APPEAL NO. 1 4 7 4 OF 2002 Between: AP State Construction Corporation Ltd., Workers and Employees Union, Represented by its General Secretary, LMD colony, Karimnagar …. Appellant V/s. The Engineer-in-Chief & Successor-in-Interest to A.P. State Construction Corporation Ltd., Erram Manzil Hyderabad & 2-Ors. …. Respondents Counsel for the appellant : Sri B.G. Ravindra Reddy Counsel for the Respondents: Smt. Vallabhaneni Santhi Sree Asst.Govt.Pleader for Irrigation THE HONOURABLE SRI JUSICE B. PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G. BHAVANI PRASAD WRIT APPEAL NO. 1474 of 2002 ORDER : (Per the Hon'ble Sri Justice G. Bhavani Prasad) This writ appeal is directed against the judgment in WP.No.30201 of 1995 dated 21-2-2002. 2. The facts in brief are that the workmen represented by the appellant herein claimed to have continuously served the A.P. State Construction Corporation Limited for more than two years but were retrenched on 22-6-1978 without any notice or retrenchment compensation in violation of section 25-F of the Industrial Disputes Act. The Corporation denied the workmen working for more than 240 days continuously and also resisted their claim on the ground of delay. In ID.No.194 of 1993 before the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad, an award was passed in the dispute on 05-11-1993 holding that from the dates of joining the workmen, were in continuous service for more than 240 days each. The Additional Labour Court also found that neither a month’s notice was given nor a month’s pay and retrenchment compensation were paid to the workmen making their retrenchment contrary to section 25-F of the Industrial Disputes Act. Holding the retrenchment to be illegal and directing reinstatement of the workmen into service, the Additional Labour Court did not award any backwages or continuity in service in the light of the long delay on the part of the workmen in moving for conciliation. The Additional Labour Court directed the absorption of the workmen in any department under the control of the successor-in-interest of the Corporation, which was by then wound up. When the Corporation challenged the said award in WP.No.30201 of 1995, the learned single Judge in the impugned judgment referred to various precedents and primarily relied on U.P. WAREHOUSING CORPORATION V/s. VIJAY NARAYAN reported in AIR 1980-SC-840 and the decision of a Division Bench of this Court in APSRTC V/s. N.YELLAIAH reported in 1997 (2) ALD-664 (DB). The relief claimed by the workmen for backwages and continuity of service were negatived by the learned single Judge following the two precedents and the writ petition was dismissed. The Union of Workmen preferred the present writ appeal contending that the learned single Judge ought to have considered the illegality of retrenchment of the workmen, which was upheld by the Labour Court and not challenged by the employer and the consequential benefits ought to have been granted to the workmen. 3. Sri B.G. Ravinder Reddy, the learned counsel for the appellant and Smt. Vallabhaneni Santhi Sree, the learned Asst.Govt.Pleader for Irrigation are heard. 4. The point for consideration is whether the workmen are entitled to backwages and continuity of service ? 5. The factual matrix is not seriously in dispute and the findings of the Additional Labour Court in the industrial dispute about the illegality of the retrenchment has become final. Though the Labour Court has observed that there was a long delay on the part of the workmen/union in moving for conciliation, the documents marked before the Labour Court show that soonafter the retrenchment dated 15-6-1978, a representation was submitted by the Union to the authorities on 19-7-1978 and 08-08- 1978 without any further delay and it is the case of the learned counsel for the appellant that not only pendency of the correspondence between the employer and employee but also the then statutory background caused the ultimate delay in approaching the Labour Court and soonafter the publication of the award of the Labour Court dated 05-11-1993 in the Gazette dated 02-6-1994, the workmen preferred the writ petition through the Union without any further delay. 6. It is thus seen that while the workmen worked for more than 240 days each continuously entitling them for protection under section 25-F of the Industrial Disputes Act, when their retrenchment was illegal and void, they would have been in the natural course entitled to the benefits of backwages and continuity in service, had they been prompt in taking recourse to the statutory remedies under the Industrial Disputes Act. The delay, for whatever reasons it occurred, resulted in a time gap of about 15 years between the retrenchment and the award of the Additional Labour Court. Balancing the rights and interests of the employer and employees, the Labour Court should have considered and provided a reasonable percentage of backwages to the workmen who were unjustly deprived of their employment and made to suffer. However, there was no specific plea that the workmen did not engage themselves in any alternative employment or work, in the meanwhile. Such backwages can be confined to a reasonable percentage of original wages while allowing continuity in service to the workmen. 7. The reasons given by the learned single Judge against grant of such relief did not appear to be of any application to the facts in the present dispute. In Vijay Narayan’s case, AIR 1980 SC-840, the Apex Court was dealing with a dispute between the workman and the employer directly before the High Court invoking the extraordinary original jurisdiction of the High Court under Article 226 of the Constitution of India and it was in that background that the High Court was held to be not capable of giving directions for reinstatement with full backwages. The Apex Court pointed out that the High Court could only quash a wrongful dismissal and it also should consider whether the workman was gainfully employed elsewhere. The direction for payment of backwages was hence reversed. Here there was equally no allegation or material on behalf of the employer to show that the workmen were employed gainfully in the meanwhile and though the writ and writ appeal are with reference to Article 226, they arose against the award of the Additional Labour Court. In Yellaiah’s case. 1997 (2) ALD-664 (DB) the Division Bench of this Court pointed out that the principle appears to be that the High Court shall be slow in granting backwages unless absence of gainful employment is clearly shown and there are no other reasons to deny backwages and grant of backwages depends on the peculiar facts of each case. 8. A reading together of the various precedents referred to by the learned single Judge indicates that different considerations shall be applied in a case where the impugned adjudication of the Industrial/Labour Dispute was by the Industrial Tribunal or by a Labour Court. If the case was not under Industrial/Labour Law and the employee had not raised an Industrial Dispute and did not invoke the jurisdiction of the Labour Court or the Industrial Tribunal and directly moved the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India, precedents held against any liberal or automatic grant of backwages. Whether reinstatement is abinitio void or void due to violation of principles of natural justice or procedure is a question of fact depending upon the evidence to be produced before the Tribunal/Labour Court and therefore there is nothing in law which prohibits granting appropriate relief by the High Court in exercise of its jurisdiction in a case arising out of the adjudication under the Industrial/Labour Law by the Industrial Tribunal or by the Labour Court. 9. Grant of backwages at 25% of the wages which the workmen would have been paid during the relevant period, while ordering continuity of service will be just and reasonable to which the workmen would be entitled to on the peculiar facts and circumstances of the present case and the order of the Additional Labour Court should be modified accordingly. 10. In the result, the writ appeal is allowed in part without costs reversing the judgment in WP.No.30201 of 1995 dated 21- 2-2002 and modifying the award of the Additional Labour Court, Hyderabad, dated 5-11-1993 in ID.No.194 of 1993 directing reinstatement of the petitioners therein to be with 25% of the backwages and also continuity of service by absorption in any department under the control of the Engineer-in-Chief, Government of Andhra Pradesh. ______________________________ JUSTICE B . PRAKASH RAO ________________________________________ JUSTICE G. BHAVANI PRASAD 13-07-2010 I s L THE HONOURABLE SRI JUSTICE B. PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD WRIT APPEAL No. 1 4 7 4 OF 2002 ORDER of the Division Bench delivered by the Hon'ble Sri Justice G. Bhavani Prasad Circulation Entry No. 37 Date: 13-07-2010 COMPUTER No. 43 Court Master: I s L