IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY NINTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 5775 of 1999 Between: The District Manager Food Corporation of India Kakinada, East Godavari District ..... PETITIONER AND 1 Smt. B. Achayamma D.No.5-2-11, Madireddyvari Street, Kakinada-01, East Godavari District 2 The Industrial Tribunal-cum-Labour Court, Rep. by Chairman & Presiding Officer, Visakhapatnam .....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 particularly a writ in the nature of Certiorari calling for the entire records on the file of the 2nd Respondent in I.T. I.D.No.13/95 (C), dt: 9-7-1998 and quash the same as illegal and contrary to law and pass such other order or orders as this Hon'ble court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.B.ANJANEYULU Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5775 OF 1999 ORDER: This writ petition is filed by the District Manager, Food Corporation of India, Kakinada, East Godavari District, the respondent in I.T.I.D.No.13/95(C) on the file of the Industrial Tribunal-cum-Labour Court, Visakhapatnam, (for brevity ‘the Labour Court’) aggrieved by the Award dated 09.07.1998 passed therein directing the writ petitioner to reinstate the first respondent in service along with continuity of service. The case of the first respondent in this writ petition before the Labour Court by way of a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) was with regard to the validity of the action of the Food Corporation of India in terminating her services as a Sweeper-cum-Water Woman. She claimed to have worked as such in the service of the petitioner organization on monthly wages from 18.12.1974 to 12.09.1988. Admittedly, she was out of service, having absented herself, from 13.09.1988 to 30.11.1989. Thereafter, she was again appointed as a Sweeper-cum-Water Woman by the petitioner organization on a daily wage basis at the rate of Rs.8/- per day with effect from 01.12.1989. According to the petitioner organization, the first respondent worked under a Handling and Transport Contractor of the Food Corporation of India from 05.02.1991 and was therefore not an employee of the petitioner organization. The issue referred to the Labour Court was with regard to the validity of the termination from service of the first respondent by the petitioner organization with effect from 05.02.1991. The first respondent examined herself as W.W.1 and marked Exs.W.1 to W.3 while the petitioner organization examined one witness and marked the Bonus Register of 1985-86 as Ex.M.1. Upon considering the material on record and after hearing both sides, the Labour Court came to the conclusion that the petitioner organization had caused termination of services of the first respondent in violation of the provisions of the Act of 1947, thereby bringing it within the meaning of “retrenchment” as contemplated under Section 2(oo) of the Act of 1947. Holding so, the Labour Court directed the petitioner organization to reinstate the first respondent in service along with continuity of service. With regard to the issue of back wages, the Labour Court, taking note of the fact that the first respondent had continued to work in the petitioner organization albeit through the so- called Handling and Transport Contractor, found no necessity to grant any back wages. Heard Sri B.Anjaneyulu, learned counsel appearing for the petitioner organization and Sri A.K.Jaya Prakash Rao, learned counsel appearing for the first respondent. Sri B.Anjaneyulu, learned counsel, contended that the first respondent having been reinducted in service in the year 1989, after her voluntary abandonment of service, was engaged on a daily wage basis and therefore there was no relationship of ‘employer’ and ‘employee’ between the parties. She was paid from the contingent fund and was engaged on a need to serve basis. Thereafter, from 05.02.1991, her services were extended to the petitioner organization through a Handling and Transport Contractor and there was no link whatsoever between the petitioner organization and the first respondent. The learned counsel contended that there was no privity of contract between the petitioner organization and the first respondent after 05.02.1991 and as such, the finding of the Labour Court that the petitioner organization had terminated the services of the first respondent was not proper and correct. He placed reliance on the Judgment of the Supreme Court in HIMANSHU KUMAR VIDYARTHI AND OTHERS v. STATE OF BIHAR AND OTHERS[1] in support of his contention that the termination of service of a daily wage employee cannot be termed to be retrenchment. Sri A.K.Jaya Prakash Rao, learned counsel for the first respondent, submitted that the Award under challenge did not call for any interference in as much as the Labour Court had given detailed reasons to support its findings and consequently, the relief granted. The admitted facts borne out by the record demonstrate that the first respondent was engaged on a daily wage basis from 01.12.1989 to 04.02.1991. There is no material placed on record either before the Labour Court or before this Court that the first respondent was put on notice with regard to the change of her status from 05.02.1991 i.e. with regard to her alleged employment under the Handling and Transport Contractor in the place of the petitioner organization. On the other hand, the deposition of the first respondent before the Labour Court shows that she had no knowledge till the year 1994 as to why her signatures were not being obtained at the time her salary was paid. In that view of the matter and as the first respondent fulfilled the requirements of “continuous service” as defined under Section 25-B of the Act of 1947, she was entitled to the protection of Section 25-F thereof in the event of her termination from service. As the petitioner organization effected a change in the status of employment of the first respondent with effect from 05.02.1991 without her being made aware of it, the same clearly amounts to ‘termination’ of her service. The Judgment in HIMANSHU KUMAR VIDYARTHI’s case has no application to the facts of the present case. In the said case, the Supreme Court was dealing with a situation where the appointments were regulated by statutory rules and as the workmen therein were not appointed to the posts in accordance with the said rules but were only engaged on the basis of need of the work, their disengagement in service was held not to be retrenchment under the Act of 1947. The Supreme Court specifically observed that the concept of retrenchment could not be stretched to such an extent as to cover such employees. However, in the present case, no material has been placed on record by the petitioner organization to demonstrate as to whether there were any statutory rules covering the appointment to the post of Sweeper- cum-Water Woman and whether the appointment of the first respondent was made to the said post in violation thereof. In the absence of this material, the petitioner organization cannot seek to bring the present case within the purview of the principle laid down by the Supreme Court in the aforesaid decision. The Labour Court, having taken note of the above said facts, rightly came to the conclusion that the first respondent was retrenched from service in violation of the provisions of Section 25-F of the Act of 1947 and accordingly, directed reinstatement in service along with continuity of service. I find no reason to interfere with the said Award in the present writ petition. The writ petition is found bereft of substance and merit and is accordingly dismissed. There shall be no order as to costs. ____________________ SANJAY KUMAR, J. 29th June, 2009. VGSR/PGS [1] (1997) 4 SCC 391