IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 6580 of 2008 Between: Prem Raj S/o Late Balaiah C/o c. Sridhar 6-1-199/5, Padmarao nagar, Secunderabad ..... PETITIONER AND 1 The Second Appellate Authority U/s. 48 (3) of A.P., Shops & Establishments Act, 1988-cum-Deputy Commissioner of Labour, Twin Cities, Anjaiah Karmika Bhavan RTC X Roads, Chikkadapally, hyderabad. 2 The Authority appointed u/s. 4891) of a.P., shops & Establis Act 1988-cum-Assistant Commissioner of Labour Circle-IV Anjaiah Karmika Bhavan RTC X Roads, Chikkadapally, Hyderabad. 3 M/s. Sunitha Textiles Mills Private Ltd., rep by its Director Sri Suresh Kumar Wadhawa, 21-1-651, Rickabgunj, Hyderabad. .....RESPONDENTS 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 issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to and in connection with the order in SA/12/2006 on the file of the Second Appellate Authority under Section 48(3) of the A.P. Shops and Establishment Act, 1988 and the Dy. Commissioner of Labour, Hyderabad (Twin Cities) and quash the same as illegal arbitrary, perverse and nonest in the eye of law and by confirming the order dated 17-8-2004 passed by the 2nd respondent in S.E. No. 4 of 2004 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.C.SRIDHAR Counsel for the Respondents: GP FOR LABOUR The Court made the following ORDER: The petitioner approached the second respondent by filing an application under Section 48 of A.P. Shops and Establishments Act, 1988. He pleaded that he was employed by the third respondent as Security Guard on monthly wages of Rs.2,000/- in the year 1998 and that his services were terminated on 03.07.2004 orally. Stating that the termination is invalid and that he was not paid minimum wages, he claimed the relief before the second respondent. The third respondent resisted the claim of the petitioner and disputed the very factum of engagement of the petitioner at any point of time. After hearing both the parties, the second respondent passed an order, dated 17.08.2006, allowing the claim of the petitioner and directing his reinstatement with full back wages. The third respondent filed S.A.No.12 of 2006 before the first respondent. The Second Appeal was allowed vide orders, dated 03.03.2008. Hence, this writ petition. The petitioner states that the second respondent examined the matter with reference to oral and documentary evidence and that clear findings were recorded to the effect that he proved his employment with the third respondent and that the removal was contrary to law. He contends that the first respondent had interfered with the order of the second respondent without any basis. The third respondent filed a counter-affidavit stating inter alia that there was nothing on record to disclose that the petitioner was ever employed with it. It is stated that the evidence of the Assistant Labour Officer who was deposed against it ought not to have been taken into account and even according to his evidence, there was no basis for granting relief to the petitioner. Heard Sri C.Sridhar, the learned counsel for the petitioner, the learned Government Pleader for Labour for respondents 1 and 2 and Sri C.Ravi Mohan, the learned counsel for the third respondent. It was the specific case of the petitioner that he was engaged by the third respondent as Security Guard in the year 1998. It is not necessary that there must be a written order of appointment by a private establishment. However, in such cases, the factum of employment must be proved through cogent, oral and documentary evidence. The petitioner placed heavy reliance upon the evidence of A.W.2, an Assistant Labour Officer. The purport of his evidence is that during the course of inspection, he noticed the presence of the petitioner. The fact, however, remains that the name of the petitioner was not entered in any of the records. Further, an inspecting official cannot be expected to figure as a witness against an employer. The only circumstance under which they can be examined is when any proceedings that emanated from them is cited as evidence, and the witness is necessary to prove the authenticity. The second respondent ought not to have permitted A.W.2 to depose as a witness, under these circumstances. If the evidence of A.W.2 is excluded, virtually nothing remains in favour of the petitioner. Obviously because of the evidence of A.W.2, the petitioner did not adduce further evidence. The appellate authority had set aside the order passed by the second respondent on the ground that there was no material. This Court is of the view that the entire matter needs to be considered afresh by the second respondent, duly giving opportunity to both the parties to adduce evidence. Hence, the writ petition is allowed, and the orders passed by respondents 2 and 1 are set aside. The matter is remitted to the second respondent for fresh consideration and disposal. The amount deposited by the third respondent shall be permitted to be withdrawn by it. There shall be no order as to costs. ___________________ L.NARASIMHA REDDY,J Dt: 04.07.2008. kdl ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT}