THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Dated this the 10th day of November, 2009. W.P.Nos. 3244 and 3572 of 2001. Between: Deputy Director of Social Welfare. Karimnagar. ……..Petitioner vs. 1.The Industrial Tribunal-cum-Labour Cpirt. Godavarikhani, Karimnagar And another. ………..Respondents. AND Between: Deputy Director of Social Welfare. Karimnagar. ……..Petitioner vs. 1.The Industrial Tribunal-cum-Labour Cpirt. Godavarikhani, Karimnagar And another. ………..Respondents. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.Nos. 3244 and 3572 of 2001. COMMON ORDER: Both these writ petitions have been preferred by the Deputy Director, Social Welfare Department, Karimnagar calling in question the correctness and validity of the Awards passed by the Industrial Tribunal-cum-Labour Court, Godavarikhani in I.D.Nos. 24/1998 and 71/1998 dt. 25.7.2000 The above said industrial disputes have been raised by the 2nd respondent in both the writ petitions in terms of Section 2-A (2) of the Industrial Disputes Act, 1947. As the facts and questions of law raised in these two writ petitions are almost identical, both of them are heard together and are being disposed of by this common order. But however, for the sake of convenience, the facts in W.P.No. 3244 of 2001 are narrated herein below as the Awards passed by the Labour Court in both the cases are almost on identical lines. It is the case of the 2nd respondent that he has been engaged as daily wage employee at the S.C. Boys Hostel, Karimnagar on 18.1.1981 and that he was subsequently transferred to S.C. Boys hostel at Kaluva Srirampoor where his services have been terminated on 19.4.1984 and that he was earning daily wages at the rate of Rs. 8/- per day from 15.12.1982 and his termination from service amounts to retrenchment and the procedure prescribed under Section 25-F of the Industrial Disputes Act has not been followed. The petitioner herein has filed a detailed counter affidavit before the Industrial Tribunal-cum-Labour Court in the above I.D. It was admitted that the 2nd respondent/workman was engaged on 18.1.1981 as a contingent employee and that he worked upto 19.4.1984. However, it was asserted that the 2nd respondent/workman has never continuously worked for 240 days in any year. It was asserted that the Government boys hostel does not answer the description of an industry for the 2nd respondent to invoke the jurisdiction of the Labour Court. It was further asserted that as and when the services of a contingent employee were required, he was engaged on daily wage basis and he was paid just and fair wages for the service rendered. It was further asserted that the Social Welfare Department being a part of the State Government, the discharge of its functions of public welfare especially to serve the disadvantaged segments of the society to further their education amounts to a social measure but not an industrial activity and hence, the industrial dispute deserves dismissal. It was further asserted that the industrial dispute is not maintainable in view of the Judgment rendered by the Supreme Court in the Executive Engineer, State of Karnataka vs. K..Soma Setty and others [1997 (3) Supreme 13] and that the industrial dispute itself has been raised after an enormous delay of nearly 14 years period and consequently the delay has caused gave prejudice to the writ petitioner to establish its case for want of records. It was further pointed out that depending upon the budgetary provision and sanction of the funds by the State Government, contingent employees are engaged and as and when the budgetary provision is withdrawn or found insufficient, the contingent employees on daily wages are not engaged. It is contended by the learned Assistant Government Pleader for Social Welfare that without adverting to any of these contentions, the Labour Court has tersely concluded the entire issue in one single paragraph, which is to the following effect: “The respondent admitted the appointment of the petitioner on 18.1.1981 and termination of the petitioner on 10.4.1984. No enquiry was conducted before removing the petitioner from service. There was no allegation against the petitioner for removal of the petitioner. Therefore, it is retrenchment of the petitioner from the service. But the petitioner kept quiet for about fourteen years. The petitioner filed this petition on 1.4.1998 whereas he was removed from the service on 19.4.1984. Relief can be given appropriately. I therefore, consider that the removal of the petitioner from the service cannot be justified. In the result, this petition is partly allowed. The petitioner shall be reinstated into service without back- wages and without continuity of service. The service of the petitioner from 18.1.1981 to 19.4.1984 shall be considered while fixing his salary. Each party do bear their own costs.” I have perused the Award passed by the Labour Court. The Labour Court had proceeded on misconception of both fact and law. It was recorded that no enquiry was conducted before removing the petitioner from service and that there were no allegations against the petitioner for such removal. Hence, his removal amounts to retrenchment. To say the least, the approach adopted by the Labour Court is unsatisfactory. The distinction between a regular/permanent employee, whose services cannot be terminated without conducting an enquiry and providing him a reasonable opportunity in accordance with Article 311 of the Constitution, and the services of a contingent employee who is engaged on daily wage basis and whose services can be terminated without conducting an enquiry, is a moot question. If a particular employee is engaged on daily wage basis and for a certain contingency, he cannot have any assured right for an enquiry to be conducted prior to terminating his services, by way of disengagement. Before answering the question as to whether the termination of an employee amounts retrenchment or not, a finding of fact has got to be recorded as to whether he was in continuous employment or not, in accordance with Section 25-B of the I.D.Act. Unfortunately, the contention raised by the present petitioner herein in the counter affidavit filed before the Labour Court that the workman had not put in continuous service of 240 days was not considered. The Award passed by the Labour Court is therefore unsustainable. At the same time, the workman should not be prevented from deriving any legitimate benefit, which he is otherwise entitled. It is for the Labour Court to make an assessment as to whether the delay in approaching the Labour Court by the workman has caused any prejudice or disadvantage to the writ petitioner in establishing the facts pleaded by them by way of leading evidence. I therefore consider it appropriate to aside the Awards passed in I.D.Nos. 24 of 1998 dt. 25.7.2000 and 71/1998 dt. 25.7.2000 and remit the matters back to the Industrial Tribunal- cum-Labour Court, Godavarikhani for consideration afresh on merits. It is needless to observe that both sides shall be given a fair and reasonable opportunity of leading evidence in the matters. I hope and trust that these industrial disputes being very old matters, they would be given priority and disposed of not later than six months from the date of receipt of records from this Registry. However, I make it clear that during the pendency of these writ petitions, certain amounts have been paid to the workmen and as the writ petitioners have resisted their reinstatement pursuant to the Awards passed by the Labour Court, in view of Section 17-B of the I.D. Act, 1947, such amounts shall not be withdrawn or recovered from the workmen. It is open for the Industrial Tribunal- cum-Labour Court to consider the matters afresh on merits and pass appropriate awards uninfluenced by any of the observations made in this common order. The writ petitions are allowed to the extent indicated above. No order as to costs. _____________________________ NOOTY RAMAMOHANA RAO,J 10.11.2009. Communicate this order to the respondents within ten days from today. B/o. KRB. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO COMMON ORDER IN W.P.Nos. 3244 and 3572 of 2001. Dated this the 10th day of November, 2009.