THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.A.NO.991 OF 2002 ORDER: Per the Hon'ble Sri Justice Nooty Ramamohana Rao This writ appeal is directed against the judgment rendered in WP No. 13198 of 1998 dismissing the said writ petition preferred by the appellants herein. WP No. 13198 of 1998 is directed against the award passed on 3.7.1997 in ID No. 300 of 1990 by the Labour Court, Guntur. The 1st respondent herein has raised an industrial dispute, in terms of Section 2-A(2) of the Industrial Disputes Act, I.D.Act for short, which is numbered as ID No. 300 of 1990. The case of the respondent – workman is that he worked as a Nominal Muster Roll (NMR) Mazdoor in the Irrigation and Power Department of the Government of Andhra Pradesh in its Penumudi Section, Repalle, Guntur District from March 1964 to November 1964, from January 1965 to November 1965, March 1966 to October 1967 and from March 1968 to December 1968, from February 1969 to November 1969 and again from 1.6.1984 to 31.7.1984. Since his services have been abruptly terminated, on 16.3.1990, he raised industrial dispute on the basis that his termination has been brought about without following the procedure prescribed under Section 25F of the Industrial Disputes Act. The 1st respondent – workman had examined two independent witnesses on his behalf apart from examining himself as WW1. On behalf of the Irrigation Department, one of its ministerial servants has been examined as MW1. The workman has also exhibited the service certificate issued to him as Ex.W1 dated 21.9.1985. On behalf of the department, two letters Ex.M1 and Ex.M2 have been exhibited. It is not in dispute that WW2 an Assistant Engineer, incharge of the Penumudi Section, based upon the entries contained in the relevant records has prepared and issued Ex.W1, the service certificate. Since the appellants herein could not produce any material to the contra, the Labour Court has concluded the issue holding his removal without giving one month’s notice and without following the procedure prescribed under Section 25F of the Industrial Disputes Act as illegal. At the same time, the Labour Court has also taken note of the fact that the respondent-workman has raised an industrial dispute only in the year 1990 i.e., with enormous delay after the alleged termination of his services, and hence has directed the appellants to reinstate the petitioner into service with the benefit of continuity of service, but, however, denied backwages to the workman. Against the said award, the writ petition has been filed by the appellants herein. They have essentially contended that the workman has not continuously worked for 240 days in a year preceding his termination. The learned Judge has noticed the finding recorded by the Labour Court in that respect, which is to the following effect: “though MW1 wanted to say that the petitioner never worked for 240 days continuously, he admits that the relevant records though available in the Divisional Office, are not produced to establish the fact that the petitioner never worked for 240 days continuously.” It therefore emerges that the material which is available at the Divisional Office of the Irrigation Department has not been produced before the Labour Court. If the record which is available is not produced by the appellants herein before the Labour Court, the Labour Court is thoroughly justified in drawing an adverse inference against them and in favour of the workman based upon Ex.W1 and the assertions of WWs 1, 2 and 3, that the workman has rendered continuous service, without any breaks, for more than 240 days, prior to his termination. It is for the petitioners therefore, to have established by producing all the relevant records that the workman in question has not rendered service for 240 days in 12 months period immediately preceding his termination and consequently he cannot be said to be in employment on continuous basis. For their failure to do so, they cannot now turn around and make a grievance out of the same. Learned single Judge has found no hesitation to dismiss the writ petition as the Labour Court has exercised the discretion available with it properly. The Labour Court has very correctly assessed the interests of both parties very carefully. It had denied to the workman the benefit of payment of backwages for the entire period of absence from service. Further, whenever any termination of service is brought about without following the procedure prescribed under Section 25F of the I.D. Act, such a termination amounts to wrongful retrenchment, warranting restoration of employment. Therefore, order of reinstatement of the workman cannot be faulted. Learned Government Pleader has strenuously contended before us that the respondent-workman has specifically pleaded that he has been removed from service on 16.3.1990 and that such a termination has prompted him to raise the industrial dispute. Whereas the Labour Court has arrived at a finding that the workman has not produced any material to establish that his services have been terminated on 16.3.1990. In such an event, the Labour Court ought to have dismissed the industrial dispute as it is clearly hit by the principles of latches, which have been enunciated in Indian Iron and Steel Company Limited case[1]. The learned Assistant Government Pleader would further submit that because the workman has voluntarily abandoned his appointment, his name was not included in the list of NMR Mazdoors prepared by the department in the year 1989 and hence his own voluntary abandonment of employment should not give rise to the industrial dispute. It was further contended by the learned Government Pleader that the unimportant records are bound to be destroyed at fixed intervals and hence the department has been prejudiced in producing the relevant material before the Labour Court, all due to the delay of the workman in approaching the Labour Court. Most importantly, the Labour Court ought to have rejected the industrial dispute having arrived at a conclusion that the 1st respondent-workman could not produce clear evidence in support of his claim. We are not at all impressed by any one of these contentions. The 1st respondent-workman could not establish before the Labour Court with reference to any credible material that his services have been terminated with effect from 16.3.1990. But, that does not mean that he himself has voluntarily abandoned the employment. In the face of the service certificate Ex.W1, it is for the petitioner/appellants to establish that the workman has not rendered 240 days of continuous service preceding the last day of his service in the Irrigation department. WW2, the Assistant Engineer incharge of Penumudi Section, Repalle, who issued Ex.W1 has clearly deposed that upon verification of the records available at the divisional office (which is headed by an Executive Engineer), the service certificate has been issued to the workman. It is thus obvious that the records relating to NMR Mazdoors were in fact available with the department. In fact, the lone witness examined on behalf of the appellants herein has also admitted this fact. Further, it is the case of the appellants before the Labour Court that a list of existing NMR Mazdoors was prepared in the year 1989 with all necessary particulars and submitted to the State Government for consideration of regularization of their services. Hence, it pre-supposes that the service particulars of NMR Mazdoors working in various irrigation projects are very much available with the appellants. But, however, they have not taken pains to produce the same before the Labour Court. Therefore, the theory pressed before the Labour Court that unimportant records will be destroyed periodically and hence the delay in instituting the industrial dispute has caused prejudice to them is not well founded at all. Far from causing any such prejudice, if the department has prepared a list of NMR Mazdoors in the year 1989, which according to the appellants did not contain the name of the 1st respondent-workman, as he has stopped working by then, it goes without saying that all the records relating to the workman are carefully preserved and they are not destroyed. Therefore, the delay in instituting the industrial dispute by the 1st respondent-workman cannot be said to have caused any prejudice to the appellants herein. As was rightly appreciated by the learned single Judge, because of the delay in instituting the industrial dispute by the 1st respondent-workman, he has been adequately penalized by denying him the benefit of backwages. We, therefore, do not have any hesitation to reject the contentions canvassed on behalf of the appellants in this writ appeal, warranting our interference with the judgment rendered by the learned single judge. Learned Assistant Government Pleader has drawn our attention to a communication received by her on 30.1.2010 pointing out that last drawn wages have been calculated and paid up to 30.10.2006, amounting to Rs.33,380/-. It is further pointed out that the 1st respondent-workman would have attained the age of superannuation of 60 years by the end of December 2008. Therefore, he would only be entitled to be paid the wages up to the end of December 2008. In other words, for the period from 1.11.2006 up to 20.12.2008, the 1st respondent-workman is still required to be paid his last drawn wages. We therefore consider it appropriate to direct the petitioners herein to pay the 1st respondent- workman the balance wages for the period from 1.11.2006 till the end of December 2008 at the same rate as was paid for the previous period. This amount has been preferred to be paid by the writ petitioners in terms of Section 17-B of the Industrial Disputes Act for having resisted the reinstatement as ordered by the Labour Court in its award. The claim of the 1st respondent- workman is that the benefits of continuity of service have not been made available, inasmuch as the last drawn wages alone have been paid to the 1st respondent- workman. During the period, when last drawn wages are required to be paid in terms of Section 17-B of I.D. Act, the benefits of continuity of service, will not be extended. More with a view to conciliate between the parties and with a view to put an end to all further litigations including any further applications under Section 33 (c) of the Industrial Disputes Act by the respondent-workman, we consider it appropriate to direct the petitioners herein to pay a sum of Rs.25,000/- (Rupees Twenty five thousand only) towards full and final settlement of all claims of the 1st respondent-workman. This amount of compensation will bring about an end of all rights, liabilities, claims, counter claims etc., amongst the parties, existing for the present and also at future. Subject to what has been stated supra, the writ appeal is disposed of. No costs. --------------------------- D.S.R.Varma, J --------------------------------- Nooty Ramamohana Rao, J knk 5th February 2010 [1] (2001) 1 SCC 2424