IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION No: 21531 of 1999 Between: A.P.S.R.T.C., Rep: by its Depot Manager, Armoor Depot, Nizamabad District. ..... PETITIONER AND A.Kishan S/o Narasimhulu R/o Jagjeevan Ram Street, Near Railway Bridge, Nizamabad. .....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 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.97 of 1993 dt.16.12.98 published in G.O.Rt.No.2391 dt.31.12.98 on the ﬁle of the Hon'ble Labour Court-II, Hyderabad and quash the order and pass Counsel for the Petitioner:SMT.B.G.UMA DEVI Counsel for the Respondent No.: MR.A.K.JAYAPRAKASH RAO The Court made the following : ORDER: This writ petition is ﬁled by the Andhra Pradesh State Road Transport Corporation (hereinafter referred to as the ‘Corporation’) through its Depot Manager, Armoor Depot, Nizamabad District, questioning the validity of the Award passed by the Labour Court – II, Hyderabad (hereinafter referred to as ‘the Tribunal’), dated 16-12- 1998 in I.D.No.97/93. The respondent-workman was engaged for the purpose of cleaning the buses on piece rate basis. It is the case of the respondent-workman that the Corporation though engaged him as a Cleaner from 1981 to 1984 has terminated his services from 01-04-1984 in violation of the terms and conditions of Sections 25-F, 25-G, 25-H and 25-N of the Industrial Disputes Act, 1947 (for short – ‘the Act’). Aggrieved thereby, he ﬁled a petition under Section 2-A(2) of the Act before the Tribunal which was numbered as I.D.No.97/93. In response to his claim petition, the Corporation has ﬁled counter aﬃdavit in which, while generally denying the allegations made by the respondent- workman, it is stated that the respondent-workman was engaged for cleaning of buses on contract basis @ Rs.1- 50ps per bus. Further it is stated that the respondent- workman had done contract work of washing and cleaning of the buses from 03-07-1981 to 14-12-1982 at Armoor Depot and from 11-01-1983 to 31-03-1984 at Nizamabad Depot. It is further stated that the respondent-workman never worked as an employee in the Corporation and denied the allegation of the respondent-workman that his services are terminated contrary to the terms and conditions stipulated in the Act. Before the Tribunal, on behalf of the respondent-workman, he himself was examined as W.W.1 and Exs.W.1 to W.6 were marked; and on behalf of the Corporation, M.Ws.1 and 2 were examined and Ex.M.1 was marked. The Tribunal, by relying on the documentary and oral evidence on record, recoded the ﬁnding that the respondent- workman has continuously worked for more than 240 days during the period from 1981 to 1984 and, while declaring the retrenchment of the respondent-workman as illegal and in violation of Section 25-F of the Act, set aside the termination order and directed the Corporation to reinstate him into service with continuity of service, but however, without backwages. Heard the learned standing counsel for the Corporation and the learned counsel for the respondent- workman. In this writ petition, mainly it is the case of the Corporation that the respondent-workman did not work for a continuous period as contemplated under Section 25-B of the Act and it is stated that he was engaged in diﬀerent spells in diﬀerent years and that he did not even work for a period of 240 days in the year preceding to his termination. It is submitted by the learned standing counsel for the Corporation that the Tribunal was in error in taking the pool period from 1981 to 1984 as a block period for the purpose of recording the ﬁnding that the respondent-workman worked for a period of 240 days as such the retrenchment of the respondent-workman is in violation of Section 25-B of the Act. On the other hand, it is submitted by the learned counsel for the respondent- workman that the Tribunal having appraised the evidence on record has categorically recorded the ﬁnding that the respondent-workman has worked for more than 240 days in the year preceding to his retrenchment and so there is no illegality in the Award passed by the Tribunal so as to interfere with the same. In the claim petition ﬁled by the workman it is clearly stated that he worked for more than 240 days during the period from 1981 to 1984. It is not in dispute that for claiming the beneﬁt under the deﬁnition of continuous service, a workman has to work for a period of 240 days in a year as per the provisions of Section 25-B of the Act. If retrenchment is made in violation of such provisions, the initial burden lies on the workman to prove that he worked for such a continuous period. To prove the same, in the instant case, except the evidence of respondent-workman as W.W.1 and the documentary evidence Exs.W.1 to W.6, there is no other evidence on record. I have perused the copies of documentary evidence ﬁled before the Tribunal. They clearly show that the respondent-workman worked for a diﬀerent number of working days in diﬀerent months and years. The working days ranged from 4 to 31 days in a month, but however, the Tribunal did not verify before recording the ﬁnding that he worked for a continuous period of 240 days. The Tribunal recorded such ﬁnding by taking the entire period from 1981 to 1984 as a block period without following the provisions under Sections 25- B and 25-F of the Act. It has to be seen that the safe guards provided under 25-F of the Act are subject to complying the deﬁnition of ‘continuous service’ under Section 25-B of the Act. So as to prove that the termination of the workman is contrary to 25-F of the Act one has to prove that he has continuously worked for a period of 240 days in a year preceding the date of his termination. If the said period is looked at from the records he did not work more than 240 days and the Tribunal grossly erred in recording the ﬁnding that the respondent-workman has worked for more than 240 days in a year. The Tribunal, instead to conﬁne to look for the period of 240 days in a year preceding to his termination, however, took the period from 1981 to 1984 as a block period and by misconstruing the provisions of the Act, ordered reinstatement of the respondent-workman. Moreover, it is also submitted by the learned standing counsel for the Corporation that though as per the Court orders the respondent-workman was reinstated on 24-06- 2000, he was not attending to the duties from 04-09-2000 onwards and produced a letter of the Regional Manager, Nizamabad, addressed to the Chief Law Oﬃcer vide letter No.L1/785(278)/94-RM:NZB dated 10-10-2000. Since the Tribunal has erred in recording the ﬁnding contrary to the provisions under Sections 25-B and 25-F of the Act, the Award is fit to be set aside. Accordingly, the writ petition is allowed and the Award of the Tribunal dated 16-12-1998 in I.D.No.97 of 1993 is set aside. No order as to costs. _______________________ R.SUBHASH REDDY, J September 22, 2008 CVRK