IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos .11286 &11323 of 1999 WRIT PETITION No.11286 of 1999 Between: Cargo Handling Private Worker Pool, Rep by its Manager Sri A.Uma Maheswara Rao, S/o V.Chalem, Near Port Maon Gate, 1st Floor, Old T.M. Office Building, Vishakapatnam. ..... PETITIONER AND 1 The Presiding Officer, Industrial Tribunal cum Labour Court, Vishakapatnam. 2 V.Appa Rao, S/o Ammoru, R/o D.No.36-82, Reddikancharapalem, Vishakapatnam. .....RESPONDENT(S) 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 to issue a writ order or direction more particularly one in the nature of Writ of Certiorari by calling for the records relating to and connected with the award passed in ID No.355/95 dt.22-12-98 on the file of the chairman and presiding Officer, Industrial tribunal cum labour Court, Vishakapatnam and consequential proceedings G.O.Rt.No.426, dt.12-3- 99 publishing the award in the gazette and quash or set aside the same holding it arbitrary, illegal, irrational, impoper and unsustainable and further declare that the 2nd respondent isd not entitled to resinstatement with back-wages and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstance of the case. WRIT PETITION NO : 11323 of 1999 Between: Cargo Handling Private Workers Pool, S/o.V.Chalem Rep. by its Manager Sri. A. Uma Maheswara Rao, Near Prot Main Gate, 1st floor, Old T.M. Officer building, Viskhapatnam. ..... PETITIONER AND 1 The Presiding Officer, Industrial Tribunal cum Labour Court, Visakhapatnam. 2 C.Dhana Raju, S/o. Nookaraju, R/o. Plot No. 93, Santhinagar, Kailasapuram, Visakhaptnam. .....RESPONDENT(S) 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 to issue a writ order or direction more particularly one in the nature of writ of Certiorari by calling for the records relating to and connected with the award passed in I.D.No.354/95 dated 22-12-98 on the file of the Chairman and Presiding Officer, Industrial Tribunal cum Labour Court, Visakhapatnam and consequential proceedings G.O.Rt.No.425, dated 12-3-99 publishing the award in the gazette and quash or set aside the same holding it arbitray, illegal, irrational, improper and unsustainable and further decalre that the 2nd respondent is not entitled to reinstatement with back-wages and pass such other or further order or orders as are deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.ABHINAND KUMAR SHAVILI Counsel for the Respondent No.1: Counsel for the Respondent No.2: None appeared The Court made the following Order: The employer has approached this Court aggrieved by the awards of the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.Nos.355 & 354 of 1995 dated 22-12-1998. Since the relief granted in both the awards is that of reinstatement with back wages and the reasons in justification for granting such a relief are identical, it would suffice if the facts in I.D.No.355 of 1995 are taken note of. The respondent-workmen approached the Industrial Tribunal- cum-Labour Court, Visakhapatnam, invoking the jurisdiction of the Tribunal under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’). They claimed that they had put in more than 240 days of service, that their services had been terminated without an enquiry being held and without their being put on notice. The petitioner herein contended that the workmen did not put in more than 240 days of service and the witness, who appeared on behalf of the Management, categorically stated that the respondent-workmen had put in 194 and 196 days respectively. The Labour Court, placing reliance on the admission of MW.1 that the workmen used to be entrusted with work and paid wages as and when there was work held that this admission of the Management brought the plea under the teeth of the concept known as cessation of work which was not due to any fault on the part of the workman, mentioned in Section 25-B, and that the said period was required to be taken into account for the purpose of Section 25-B(1) of the Act. The Tribunal further held that, though the Management had filed 30 loose sheets, it could not be equated to the muster roll which it was expected to maintain in terms of Section 25-D of the Act. The Tribunal held that non- production of the records necessitated an adverse inference being drawn against them and, accordingly, held that the workmen had established that they had been in continuous service for a period of one year, by the date of their discharge from service, which called for protection under Section 25-F of the Act. The Tribunal further held that, in addition to the petitioner having terminated the services of the respondents-workmen in violation of Section 25-F of the Act, it was also evident that the termination order cast a stigma necessitating an enquiry being held before the punishment of removal could be imposed, that the action of the petitioner amounted to unfair labour practice, contemplated by Item No.5(f) of Part-I of Schedule-V, and, as such, was illegal. Section 25-B of the Act defines ‘continuous service’ and, under sub-section (1) thereof, a workman shall be deemed to be in continuous service for a period if he is, for that period, in uninterrupted service, including service, which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock out or a cessation of work which is not due to any fault on the part of the workman. Under sub-section (2), where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year, if the workman, during a period of twelve calendar months, preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. Thus, in order to determine whether a workman had worked continuously for a period of one year under an employer, it is necessary to ascertain whether he had put in 240 days or more in the 12 month period preceding his termination. The words “cessation of work which was not due to any fault on the part of the workman”, cannot be construed to mean that, where the employer does not engage the services of a casual workman though work was available, it would amount to cessation of work not due to any fault on the part of the workman. The words “cessation of work” has to be read ejusdem generis with the earlier part of the said clause. It is only when the work being carried on by the employer ceases, and such cessation is not due to any fault on the part of the workman, would a person be deemed to be in continuous service. In cases where the workman has not rendered service for one year, the test to determine whether he has worked for a continuous period of one year has to be ascertained under clause (ii) of sub-section (2) of Section 25-B of the Act which is whether the workman had put in 240 days of service in the 12 month period preceding his termination. It is settled law, as has been held in a catena of the judgments of the Supreme Court in Range Forest Officer v. S.T.Hadimani[1], Essen Deinki v. Rajiv Kumar[2], Rajasthan State Ganganagar S.Mills Ltd. v. State of Rajasthan[3], Municipal Corporation, Faridabad v. Siri Niwas[4], M.P.Electricity Board v. Hariram[5], Manager, Reserve Bank of India, Bangalore v. S.Mani[6], Batala Coop. Sugar Mills Ltd. v. Sowaran Singh[7], Surendranagar District Panchayat v. Dahyabhai Amarsinh[8], R.M.Yellati v. Assistant Executive Engineer9, ONGC Ltd. v. Shyamal Chandra Bhowmik10, Chief Engineer, Ranjit Sagar Dam v. Sham Lal11, State of Gujarat v. Pratamsingh Narsinh Parmar12 and Krishna Bhagya Jal Nigam Ltd. v. Mohd. Rafi13, that the burden lies on the workman to establish that he worked for a continuous period of 240 days in the 12 month period preceding his termination. Since the onus is on the workman to discharge the burden of establishing that he has worked for more than 240 days in the 12 month period preceding his termination, the onus cannot be initially placed on the employer, and the Tribunal, in placing the onus on the petitioner herein, has exceeded its jurisdiction. The Labour Court has not even examined whether the workmen had adduced any evidence, other than their self serving oral testimony, to establish that they had put in more than 240 days of service. It is only if they had rendered such service would they be entitled for protection under Section 25-F of the Act. It is necessary to note that, under Section 2(oo) of the Act, ‘retrenchment’ has been defined to mean termination by the employer of the services of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. Even in cases where an employee satisfies the requirement of having rendered continuous service under Section 25-B of the Act, if his termination was by way of punishment inflicted by way of disciplinary action, then such a workman is not entitled to contend that his services were retrenched or to claim the protection of Section 25-F of the Act. As such it is only if a workman satisfies the requirement of continuous service under Section 25-B of the Act, and his services had been terminated contrary to Section 25-F of the Act, would the question of examining whether his services were terminated pursuant to a punishment inflicted by way of disciplinary action arise for consideration and, since in the present case, the workmen had not even put in the required one year service, (240 days in the 12 month period preceding his termination), they are not entitled for the protection under Section 25-F of the Act. It is wholly unnecessary for this Court to examine this question any further though it is well settled that, even in cases where punishment, imposed by way of disciplinary action, was not preceded by an enquiry, it is always open to the employer to let in evidence before the Tribunal in justification of the punishment imposed on the delinquent employee and, if it is able to satisfy the Tribunal that the punishment imposed is just and proper, the punishment would relate back to the original date of the order of punishment. Viewed from any angle, the awards of the Labour Court, Visakhapatnam, are required to be quashed. Both the writ petitions are allowed. However, in the circumstances, without costs. _______________ 29-02-2008 usd [1] 2002(3) SCC 25 [2] 2002(8) SCC 400 [3] 2004(8) SCC 161 [4] 2004(8) SCC 195 [5] 2004(8) SCC 246 [6] 2005(5) SCC 100 [7] 2005(8) SCC 481 [8] 2005(8) SCC 750 9 2006(1) SCC 106 10 2006(1) SCC 337 11 2006(9) SCC 124 12 2001(9) SCC 713 13 2006(9) SCC 697