HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P. No. 21090 of 2001 Dt. 02-12-2010 Between: State Board of Technical Education ..Petitioner And The Labour Court – I & another …respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITON No. 21090 of 2001 O R D E R: State Board of Technical Education and Training filed this petition praying writ of certiorari to quash the award dated 29.06.2001 in I.D.No. 87 of 1998 passed by the Labour Court –I Hyderabad and notified in G.O.Rt.No. 2297 dated 13-09-2000 of Labour, Employment, Training and Factories (Lab.I) Department. 2. The 2nd respondent claiming herself to have worked continuously as NMR sweeper under the petitioner from the year 1996 to the year 1997, approached the Labour Court-1st respondent with an application under section 2(A)(2) of the Industrial Disputes Act, 1947 (in short, the Act) for direction to the petitioner to reinstate her into service with all consequential benefits, alleging that she was orally terminated from service by the petitioner. 3. The petitioner contended before the 1st respondent/labour court that it is not an ‘industry’ as defined under section 2(j) of the Act and that the 2nd respondent did not put in continuous service for 240 days in a year prior to the alleged termination and that therefore, she is not entitled for the relief of reinstatement. During enquiry before the labour court, the 2nd respondent examined herself as WW-1 and marked Exs.W1 to W3 which are legal notice, acknowledgement and identity card respectively. On behalf of the petitioner, MW-1 was examined and Exs.M1 to M7 were marked. Exs.M1 to M5 are receipts for payment of wages to the 2nd respondent during the period from September, 1997 to May 1998 for a period of 202 days. The petitioner also produced Ex.M6 acquaintance register for the years from 1993 to 1999. The Labour Court after drawing adverse inference for the alleged non-production of the records by the petitioner, passed the impugned award directing reinstatement of the 2nd respondent into service as NMR sweeper with continuity of service, back wages and attendant benefits. 4. It is contended by the petitioner’s counsel that the petitioner was established under Section 6 of the A.P. Education Act 1982 and that it is a statutory body and that therefore, it is outside the definition of “Industry” within the meaning of Section 2(j) of the Act in view of Clause (6) of explanation contained therein. The said clause reads as follows: “Any activity of the Government relatable to the sovereign function of the Government including all the activities carried on by the department of the central government dealing with the defence research, atomic, energy and space.” 5. It is contended that since the petitioner is a statutory body owing its existence to the A.P. Education Code, 1982, the above clause (6) of the Explanation excludes the petitioner from the definition of ‘Industry’ contained in section 2(j) of the Act. Activity of the Government relates to both sovereign and non-sovereign functions. Regulation of technical education by way of establishing Board of Technical Education cannot be equated to sovereign function of the State, it is a non-sovereign function of the State. All functions of the state or the Government are not sovereign functions. Some of the sovereign functions of the Central Government are described in Clause (6) of the Explanation itself as defence research, automatic energy and space. They are illustrations of the sovereign functions. Sovereign functions of the state are those functions, which any other agency cannot undertake in the country except by the state. Running educational institutions and co-ordinating or guiding technical education in the State of A.P. cannot be equated with a sovereign function of the State Government. Therefore, clause (6) of the explanation to Section 2(j) of the Act has no application to the petitioner/Board of Technical Education. 6. It is contended by the petitioner’s counsel that the Labour Court erred in drawing adverse inference for the alleged non-production of records. It is further contended that burden to prove that the 2nd respondent had put in continuous service for 240 days lies on the 2nd respondent herself and she has to discharge the said burden by leading acceptable evidence. In this case, except examining herself as WW-1, the 2nd respondent did not produce any oral or documentary evidence except her identity card-Ex.W3. On the other hand, the petitioner produced Exs.M1 to M5-wage receipts and also Ex.M6-acquaintance register during the relevant period. From Exs.M1 to 6 it is clear that the 2nd respondent did not put in continuous service of 240 days in one year prior to her termination or disengagement. 7. In Surendranagar District Panchayat Vs. Dahyabhai Amarsinh[1] the Supreme Court after referring to its earlier pronouncement held that it is for the workmen to produce relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of 12 calendar months preceding the date of termination. The relevant extract from the above Supreme Court pronouncement is as follows: “18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence that workman has not produced any evidence to prove the fact that he has worked 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The courts below have wrongly drawn an adverse inference for non-production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of section 25-F of the Industrial Disputes Act.” 8. In the light of the above facts and legal situation, I have absolutely no doubt in my mind that the Labour Court erred in drawing adverse inference against the petitioner with regard to continuous service put in by the 2nd respondent for 240 days in a year preceding her termination. 9. The 2nd respondent having failed to adduce any evidence to prove her continuous service for 240 days as contemplated under section 25-B(2) (a) of the Act, is not entitled to the benefits under Section 25-F of the Act. I find that the order passed by the Labour Court is based on no evidence and is contrary to law. 10. In the result, the writ petition is allowed making rule nisi absolute and quashing the impugned award passed by the 1st respondent/Labour Court –I, Hyderabad. No costs. ________________________________ SAMUDRALA GOVINDARAJULU,J Dt: 02-12-2010 [1] (2005) 8 Supreme Court Cases 750