THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 2310 of 2001 O R D E R: This Writ Petition has been preferred by the Executive Engineer and the Superintending Engineer of P.W.D. Workshop and Machinery Division, Narasaraopet and Nagarjuna Sagar Right Canal, Operations and Maintenance Circle, respectively, calling in question the legality and correctness of the Award passed by the Labour Court in I.D.No. 81 of 1992 on 5th May 2000. It is the case of the 1st respondent workman that he was engaged as a Man Mazdoor from 1st April 1977 and continued as such till 26th May 1982 and he has been paid daily wages. However, on 26th May 1982, his services have been abruptly terminated without any notice and without passing any order assigning reasons therefor. He, therefore, instituted the above Industrial Dispute, invoking the provision available under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short, ‘the Act’). The 1st respondent has pleaded that he was engaged as a Man Mazdoor in the Machinery Division of P.W.D. Workshop at Narasaraopet in Guntur District and that he was in continuous employment for more than 240 days in a year before the date of his termination and hence, his termination amounts to retrenchment, and before effecting the same, the provisions contained under Section 25-F of the Act ought to have been complied with and since the same were not complied with, he is liable to be reinstated with benefits of continuity of service and back wages. The workman has examined himself as W.W.1 and he has also examined another individual as W.W.2. He has got marked Exs.W1 to W4 on his behalf, whereas on behalf of the writ petitioners, two witnesses M.Ws.1 and 2 were examined and Exs.M1 to M4 have been got marked. The petitioners herein have raised a serious objection to the maintainability of the Industrial Dispute on the ground that the Irrigation Department, Government of Andhra Pradesh, to which Department, P.W.D Workshop at Narasaraopet belongs to and forms part of, is not an industry, in terms of the definition of the said expression contained in Section 2(j) of the Act. On behalf of the petitioners herein, reliance was placed on the judgment rendered in Executive Engineer, State of Karnataka v. K. Soma Setty and others[1], wherein the Supreme Court has ruled that the Irrigation Department of a State Government is not an industry within the meaning of Section 2(j) of the Act. On the contra, it was contended by the 1st respondent – workman that P.W.D. Workshop at Narasaraopet is a distinct unit by itself though belonging to the Irrigation Department. Lot of Industrial activity is undertaken at the workshop. Repairs and maintenance works apart from manufacture of certain equipment and machinery is also undertaken. It was further contended by the respondent workman that the Supreme Court in the judgment reported in General Manager Telecom v. Sri Srinivasa Rao and others[2] had clearly held that the Telecommunications Department of the Union of India is an industry and in so holding, the Supreme Court has clearly applied the “dominant nature test” as laid down by the Supreme Court earlier in Bangalore Water Supply and Sewerage Board v. Rajappa[3] Case. It is, therefore, contended by the workman that the judgment rendered in K. Soma Setty’s case is not an authority for the proposition to hold that all offices or establishments of Irrigation Department cannot be construed as industry for the purpose of the provisions of the Industrial Disputes Act, 1947. On behalf of the 1st respondent workman, Sri B.G. Ravinder Reddy, learned Counsel, appeared and strongly opposed the Writ Petition by contending that the Labour Court has taken a very realistic view of the entire matter and the writ petitioners are purposefully dragging on this litigation only with a view to prevent the 1st respondent workman to deny his legitimate dues. It will be relevant to notice that P.W.D. Workshop is established as part of Operation and Maintenance Circle of the Irrigation Department of the Government of Andhra Pradesh. The essential functions carried out by this Workshop relate to undertaking periodical repairs and maintenance works of various equipment and machinery employed in various irrigation works of the Department. They also, in the process, manufacture some of the tools, equipment and related material to be used by the Irrigation Department. It is, therefore, difficult to appreciate the contention canvassed by the writ petitioners herein that P.W.D. Workshop of the Irrigation Department cannot be construed as an industry. The Supreme Court in Bangalore Water Supply and Sewerage Board’s case, has dealt with this very issue at great length and ultimately, held that the dominant purpose for which the concerned Department of the State is established will be the key factor for determining its status as an industry or not. It would also be appropriate, at this stage, to notice that when a vain attempt has been made for reconsideration of this principle, the Supreme Court in Coir Board, Ernakulam, Kerala State and another v. Indira Devi and another[4] has clearly held that the judgment rendered by a seven- judge Bench of the Supreme Court in Bangalore Water Supply and Sewerage Board’s case, does not require any re-consideration and hence, the ratio in Bangalore Water Supply and Sewerage Board’s case is a binding ratio. It is, therefore, rightly held by the Labour Court that P.W.D. Workshop, where the 1st respondent workman was employed as a Man Mazdoor, clearly answers the description of an ‘industry’. The feeble attempt made by the writ petitioners solely drawing inspiration from K. Soma Setty’s case is not sustainable, as the P.W.D. workshop carries on industrial activity, as its core work. The workman has, in fact, got marked the service certificate issued in his favour on 13th February 1992. Therefore, the fact remains that he has been employed continuously as a Man Mazdoor in P.W.D. Workshop at Narasaraopet. It is, therefore, for the writ petitioners to demonstrate as to whether the 1st respondent workman has been engaged continuously or not, by drawing out appropriate material. Thought an attempt has been made by marking the muster roll as Ex.M1 and a statement showing the particulars of the 1st respondent workman as an N.M.R. employee as Ex.M2, no care has been taken by the petitioners herein to produce the relevant material, which is within their custody, such as the payment of wages register, etcetera to prove that the 1st respondent workman was not in continuous employment of P.W.D. Workshop. Section 25-B of the Act makes the position very clear that if a workman has actually worked under the employer for not less than 240 days during the period of 12 calendar months preceding the date on which his services were terminated, he shall be deemed to have been in continuous service of such an employer. Therefore, the burden lies heavily on those who alleged and pleaded that the respondent workman is not in continuous employment. Since the petitioners herein have failed to discharge such a burden, by leading positive evidence, with reference to the wage registers, muster rolls, etcetera, preceding the date 26th May 1982 from which date the respondent workman alleged that he has been stopped from rendering services, the Labour Court has rightly concluded the issue that the 1st respondent workman shall be deemed to have been in continuous employment in P.W.D. Workshop at Narasaraopet. When once a workman happened to be in continuous employment of an industrial establishment, and if his services are sought to be terminated for any reason whatsoever, such an act attracts the definition of ‘retrenchment’ as set out in Section 2(oo) of the Act. Section 2(oo) has defined the expression ‘retrenchment’ in very wide and broad terms stating that the termination by the employer of the services of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action, voluntary retirement of the workman or retirement of the workman on reaching the age of superannuation or termination of service of the workman as a result of non-renewal of the contract of the employment or termination of service of the workman on the ground of continued ill-health, would amount to retrenchment. The crucial expressions employed in Section 2(oo) are termination by the employer of the service of a workman “for any reason whatsoever”. In fact, all speculative aspects relating thereto have been put at rest by the Supreme Court in State Bank of India v. N. Sundara Money[5], by holding that termination of service of a workman for any reason whatsoever would fall within the meaning of ‘retrenchment’. Section 25-F of the Industrial Disputes Act laid down the conditions precedent to such retrenchment of workman. They include 1) a month’s notice in writing indicating the reasons for such retrenchment or offering wages in lieu of such notice; 2) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to 15 days’ average pay for every completed year of continuous service; and 3) notice prescribed is served on the appropriate Government or authority specified by the Government in that regard. It is not the case of the petitioners that they have complied with these conditions precedent spelt out under Section 25-F of the Act before the Labour Court. On the other hand, they have taken the plea that it is the respondent workman who has abandoned the employment. If the respondent workman was truly guilty of such a misdemeanor, nothing prevented the petitioners to establish the same by way of service of any notice issued by them, calling upon the respondent-workman to report to duty or resume the duties promptly. This apart, the plea of the writ petitioners before the Labour Court was that the respondent-workman has been engaged only for performing certain contingent works and, therefore, he was in continuous employment of P.W.D. Workshop till such works lasted. This itself belies the theory that the workman has abandoned the employment. At any rate, necessary material evidence has not been brought before the Labour Court in this regard. I, therefore, do not find any justifiable reason for taking a different view than what has been taken by the Labour Court that the termination of employment of the 1st respondent workman amounts to retrenchment. Then comes the question as to how the relief that is liable to be granted to the 1st respondent workman should be modulated. The 1st respondent is certainly guilty of invoking the provision available under Section 2-A(2) of the Act by moving the Labour Court a clean 10 years later. That fact alone signifies that he may perhaps been gainfully employed elsewhere, particularly, when he was a Man Mazdoor. The 1st respondent workman is absolutely lax in his approach with regard to calling in question the termination of his services. He has approached the Labour Court for the first time in the year 1992. Therefore, the Labour Court has rightly denied the relief of payment of wages up to the point of instituting the legal proceedings by the workman concerned. However, when it came to relief to be granted for the post period, the Labour Court has awarded 100% back wages to the workman, from the date of filing the petition till he gets reinstated. I am afraid, this is where the Labour Court has not properly balanced its Award. Because of the extraordinary delay indulged in by the workman in instituting the proceedings, he has caused prejudice to the opposite party in contesting the matter properly. Further, he has also not led any evidence to demonstrate that in spite of his best efforts, he could not be employed, much less gainfully. For his failure, he ought not to have been awarded 100% back wages. In fact, appropriate measure would have been awarding him 50% back wages, so that even the workman will have to pay for his lapses as well. Similarly, the Department/writ petitioners herein should also suffer for their failure in the process. Except modifying the Award to this extent of reducing the payment of back wages for the period after raising the I.D. should be paid at the rate of 50% instead of 100%, the Award under question does not call for any interference whatsoever. The respondent workman was rightly ordered to be reinstated into service by the petitioners. Therefore, this Writ Petition is allowed in part, modifying the Award by directing the petitioners to pay 50% of the back wages from the date of raising the Industrial Dispute by the 1st respondent workman till his reinstatement. It has been reported by the learned Assistant Government Pleader that the 1st respondent workman has not been so far reinstated but he has been paid wages in terms of Section 17-B of the Act. Therefore, the wages paid to the workman in terms of Section 17-B of the Act will be given credit to while calculating the back wages that become payable to the 1st respondent workman. The rest of the Award passed by the Labour Court is confirmed. No costs. I hope and trust that the writ petitioners herein will take expeditious steps for reinstating the 1st respondent workman, at any rate, within a maximum period of three months from the date of receipt of a copy of this order. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 19th November 2009 ksld [1] 1997 LLR 889 [2] 1998 LLR 8 [3] AIR 1978 SC 548 [4] 1999 LLR 319 [5] 1976(1) LLJ 478 (SC)