IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 26485 of 1999 Between: A.P.S.R.T.C rep. by its Depot Manager, Tandur Depot, Ranga Reddy District. ..... PETITIONER AND B.Kashinadh S/o.Yellappa R/o.Agnoor Post, Agnoor Village, Yalal Mandal, Ranga Reddy District. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly in the nature of Writ of Certiorari by calling for the records in I.D.No.200 1994 dt.31-12-98 published in G.O.Rt.No.834 dt.5.05.1999 on the file of the Hon'ble Labour Court-III, Hyderabad and quash the order. Counsel for the Petitioner:MR.K.MADHAVA REDDY(SC FOR APSRTC) Counsel for the Respondent: MR.A.K.JAYAPRAKASH RAO The Court made the following : ORDER : This writ petition is filed by the Andhra Pradesh State Road Transport Corporation, through its Depot Manager, Tandur Depot in Ranga Reddy District, challenging the validity of the common award, dated 31st of December 1998, passed in I.D.No.199 of 1994 and batch, by Labour Court-III, Hyderabad. 2. By the aforesaid award, the Tribunal has directed the petitioner/management to reinstate the respondent into service as a casual Cleaner and further directed for absorption as Cleaner on permanent basis as and when vacancies arise. 3. The respondent-workman has filed an application under Section 2-A(2) of the Industrial Disputes Act, 1947, seeking relief of reinstatement into service with the benefit of continuity of service with full backwages and other attendant benefits. As per the averments made in the application, it was the case of the respondent before the Tribunal that he had joined the service of the Petitioner- Corporation as a casual Cleaner on 21.08.1990 and worked as such continuously up to 07.09.1993. It was his case that though he worked continuously for more than three years, the respondents have dispensed with his services without following the provisions contained in Section 25-F of the Industrial Disputes Act, 1947. It was also stated in the petition that he was attending the duties of cleaning and sweeping the buses, which job was regular and permanent in nature. The respondent has further stated in the application that the claims of similarly placed persons like him, were considered and their services were regularized. 4. The petitioner-management has opposed the relief sought by the respondent, by filing counter affidavit. Primarily, it was the case of the management that there was no relationship of employer and employee between the Corporation and the respondent, and due to heavy absenteeism of regular Cleaners and Helpers, they have entrusted the work of cleaning and sweeping the buses by way of contract to one Sri G.Mohan Reddy. It is stated that based on the contract given to Sri G.Mohan Reddy, the respondent herein has worked for the period from 01.01.1990 to 07.09.1993, and was being paid as per the certification by the Mechanic Foreman. Therefore, it was the case of the management that as much as the respondent was not appointed by the management directly, there was no obligation on their part to comply with the provisions of Section 25-F of the Industrial Disputes Act, 1947. 5. As similar questions arose in a batch of cases, in view of the memo filed before the Tribunal, all similar cases which were pending in I.D.Nos.192 to 201 of 1994 were clubbed by recording the evidence in one of the matters. 6. The claimants were examined as WW-1 to WW-10 on their behalf, and on behalf of the management, the Depot Manager, Tandur, at the relevant time, was examined as MW-1. On behalf of the workman, Exs.W-1 to W-10 were marked, and on behalf of the management, Ex.M-1 was marked. The Tribunal, having appreciated the oral and documentary evidence on record, has recorded a finding that the management did not place any material to show that the respondent/workman was not engaged directly by the Corporation, but he was working as a Cleaner under a contractor by name Sri G.Mohan Reddy. By further recording a finding that no material is placed by the management to show that the work was entrusted to one of the workers as a contractor in the name of Sri G.Mohan Reddy, it was of the view that the services of respondent were terminated contrary to the provisions under Section 25-F of the Industrial Disputes Act, 1947. While recording so, the Tribunal has directed the petitioner/management to reinstate the respondent into service without any backwages, with a further direction to absorb him into regular service as and when clear vacancy arose. 7. Heard Sri K.Madhava Reddy, learned Standing Counsel appearing for the petitioner-Corporation and Sri A.K.Jayaprakash Rao, learned counsel appearing for the respondent. 8. In this writ petition, it is argued by the learned Standing Counsel that inspite of the fact that the respondent was engaged only by the Contractor and not by the management, mis-construing the evidence on record, the Tribunal has ordered for reinstatement. It is submitted by him that the wages were being paid only to Sri G.Mohan Reddy, who was a labour contractor, as such, there was no relationship of employer and employee between the Corporation and the respondent, so as to complain about non-compliance of the provisions under Section 25-F of the Industrial Disputes Act, 1947. It is further submitted that in any event, the scope of Tribunal in dealing with the application filed under Section 2-A(2) of the Industrial Disputes Act is very limited, and the Tribunal has to only examine the validity of the retrenchment with reference to the evidence available on record, but it has exceeded its jurisdiction by directing the management to absorb the service of the respondent on permanent basis, subject to availability of clear vacancies. 9. On the other hand, it is contended by Sri A.K.Jayaprakash Rao, leaned counsel appearing for the respondent that as he has demonstrated before the Tribunal that he has worked for more than three years directly under the Corporation, the Tribunal has rightly ordered for his reinstatement. It is submitted by the learned counsel that he was appointed directly by the Depot Manager and worked for more than 240 days continuously, and in that view of the matter, there is no reason or justification in terminating his services without following the mandatory provisions contained under Section 25-F of the Industrial Disputes Act. It is further submitted that as much as the services of the similarly placed employees were regularized, the Tribunal has ordered for absorption of the services of the respondent on permanent basis, subject to availability of vacancies. 10. In view of the rival contentions of the learned counsel appearing for the parties, two questions arise for consideration by this Court; Firstly, whether any material was placed by the petitioner/management to show that the respondent was engaged by a contractor and not by the management directly, and secondly, even in the event of retrenchment of the respondent from the service of the Corporation by not following the provisions contained under Section 25-F of the Industrial Disputes Act, can the Tribunal issue directions for absorption of the respondent into service of the Corporation on permanent basis. 11. With reference to first issue, in this case, it has to be seen that in the averments made in the application filed under Section 2-A(2) before the Tribunal, and also in the oral evidence, it has been stated by the respondent that he has worked in the Corporation, doing the work of cleaning and sweeping the buses, from 01.01.1990 to 07.09.1993. Even though it was the case of the management that the work of cleaning and sweeping the buses was entrusted to a contractor by name Sri G.Mohan Reddy, and that the respondent was working under him, but there was no material placed before the Tribunal in support of such a defence. Although it was pleaded on behalf of the petitioner/management that the contract which was given to the labour contractor was terminated by virtue of a notice, dated 11.03.1992, but they failed to explain as to on what basis, the respondent was continued in the work for the period beyond 11.03.1992, up to 07.09.1993. Continuous working by the respondent is never denied by the petitioner/management. It is also relevant to note that on behalf of the management, the Depot Manager who worked at Tandur from June 1989 to November 1992, was also examined, and contrary to the stand taken by the management in the counter affidavit filed before the Tribunal, this witness has stated in his deposition that the work of sweeping and cleaning of the buses was being done by the labour, who were engaged by the Depot Manager. In the said deposition, he had merely stated that one of the workers was made incharge for payment of wages for the workmen. If that is the deposition of the Depot Manager, it cannot be said that the respondent was working under a contractor. Even from the deposition of the management witness also, it is clear that the respondent was engaged by the management itself and merely because payment was made by one of the co-workers, that does not support the case of the management that the respondent was working under a contractor. In any event, the Tribunal, having appreciated the oral and documentary evidence available on record, has recorded its findings, and in the absence of any material to show that such findings are perverse and contrary to evidence, it is not possible for this Court in this writ petition filed under Article 226 of the Constitution, to interfere with such findings of fact given by the Tribunal. 12. Though the learned Standing Counsel appearing for the petitioner-Corporation has placed reliance on a judgment of the Hon’ble Supreme Court in the case of M.D., Karnataka Handloom Development Corporation Ltd. V. Sri Mahadeva Laxman Raval[1], but the said judgment will not render any assistance to the petitioner, for the reason that in the said case, the contract was for a specific period under a project called “Vishwa”, to train the weavers. In the context of appointment of workmen on contract basis for the said project, the Hon’ble Supreme Court has considered the scope of Sections 2(oo)(bb) and 25-F of the Industrial Disputes Act, 1947, and held that if the workmen are employed on contract basis to carry out a particular project under a contract, then if such workmen are terminated on completion of the said project, it cannot be termed as retrenchment under Section 25-F of the Industrial Disputes Act, 1947. 13. On the other hand, the learned counsel appearing for the respondent/workman has placed reliance on a Division Bench judgment of this Court in Writ Appeal No.478 of 2000 and batch, dated 22nd July 2003, wherein, a Division Bench of this Court, in identical circumstances, has upheld the findings recorded by the Tribunal that termination of workmen therein was nothing but retrenchment, and rejected the contention of the management that there was a contract and the workmen were working under a contractor for cleaning the buses. This judgment clearly supports the case of the respondent. 14. For the aforesaid reasons, in view of the admitted position that the respondent/workman has worked for more than three years and his services were retrenched without following the procedure contemplated under Section 25-F of the Industrial Disputes Act, 1947, the Tribunal has rightly ordered for his reinstatement. But, at the same time, the learned Standing Counsel for the petitioner-Corporation has contended that while considering the application filed under Section 2-A(2) of the Industrial Disputes Act, 1947, the Tribunal has exceeded its jurisdiction in directing for absorption of respondent into service on permanent basis as and when regular vacancies arise. I do find force in the contention of the learned Standing Counsel that the Tribunal has exceeded its jurisdiction in issuing such directions for absorption. As much as the scope of the application filed under Section 2-A(2) of the Industrial Disputes Act is limited to consider whether the retrenchment attracts the provisions of the Industrial Disputes Act or not, there is no authority or jurisdiction for the Tribunal to direct for absorption of the respondent on permanent basis. As much as the respondent has chosen to work on casual basis as a Cleaner, no direction can be given either for his absorption or regularization. It is to be noted that at no point of time an advertisement was given inviting applications for filling up the vacancies, in the absence of which, in violation of the equality Clause enshrined under Article 14 of the Constitution, based on the back-door entry by the respondent/workman, he cannot be directed to be absorbed into service of the Corporation on permanent basis. 15. For the aforesaid reasons, the Award of the Tribunal to the extent of directing for absorption of respondent as a Cleaner on permanent basis, is set aside. As much as it is stated that pursuant to the Award of the Tribunal, the respondent is already reinstated, it is made clear that if the services of respondent are not required, it is always open for the petitioner-Corporation to take steps to dispense with his services, in accordance with the provisions of the Industrial Disputes Act, 1947. Accordingly, the award of the Tribunal shall stand modified. 16. The writ petition is partly allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 18th February 2009. ajr [1] 2007 (1) SCJ 38