IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 19613 of 1999 Between: P. Suryanarayana S/o. Damodaram, R/o. Patharlapalli Village & post, Ranasthalam Mandal, Srikakulum District. ..... PETITIONER AND 1 The District Social Welfare Officer, B.C. Welfare, Srikakulum. 2 The Industrial Tribunal cum Labour Court, Visakhapatnam. .....RESPONDENT(S) 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 one in the nature of writ of Mandamus declaring the action of the respondent no.1 in not reinstating the petitioner as cook and in not paying backwages and the costs as directed in award of the second respondent passed in I.D.No.333/95 dt.17.3.99 while reinstating the similarly situated persons i.e. Y. Krishna Murthy and K. Laxminarayana in I.D.Nos.30/95 and 301/95 respectively as illegal, arbitrary and unjust, consequently direct the respondent No.1 to reinstate the petitioner as into the service forthwith with the all consequential benefits and pass such other order or orders as are deemed fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.P.KRISHNA REDDY Counsel for the Respondent No.: GP FOR SOCIAL WELFARE WRIT PETITION NO : 19802 of 1999 Between: The District Social Welfare Officer, B.C.Welfare, Srikakulam District., ..... PETITIONER AND 1 P.Suryanarayana S/o. Damodaram, (Pathariapalli Village & PO), Ranasthalam Mandal, Srikakulam District. 2 The Industrial Tribunal cum- Labour Court, Rep. by its Presidng Officder, Visakhaptnam District. .....RESPONDENT(S) 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 directions more particularly one in the nature of Writ of Certiorari and to call for the records, relating to I.D.No.333 of 1995 dt; 17-3-1999 on the file of the 2nd Respondent herein (which was published in G.O.Rt.No. 723, dt; 23-4-1999, Labour, Employment, Training and Factories, (Lab-I) Depot., and quash the same and to pass such other order or orders as may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:GP FOR SOCIAL WELFARE Counsel for the Respondent No.: MR.V.SUDHAKAR REDDY The Court made the following : THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.19613 AND 19802 OF 1999 COMMON ORDER: Writ Petition No.19613 of 1999 is filed seeking implementation of the Award dated 17.03.1999 in I.D.No.333 of 1995 on the file of the Industrial Tribunal-cum-Labour Court, Visakhapatnam (for brevity, ‘the Labour Court’) whereby the petitioner in the writ petition (hereinafter referred to as ‘the workman’) was directed to be reinstated in service with full back wages along with continuity of service and costs of Rs.500/-. Writ Petition No.19802 of 1999 is filed by the District Social Welfare Officer, B.C. Welfare, Srikakulam District, (hereinafter referred to as ‘the employer’) the respondent in I.D.No.333 of 1995 assailing the Award dated 17.03.1999. As both the writ petitions arise out of the same Award, they are disposed of by way of this common order. Heard Sri V.Sudhakar Reddy, learned counsel for the workman and the learned Assistant Government Pleader for Social Welfare appearing for the employer. The Award under challenge discloses that the Labour Court took note of the fact that the employer failed to produce the muster rolls contemplated under Section 25-D of the Industrial Tribunal Act, 1947 (for brevity, ‘the Act of 1947’) in support of it’s contention that the workman had not completed the qualifying service required for seeking protection under Section 25-F of the Act of 1947. On the other hand, the employer produced only the Attendance Register, Cash Book, the statement prepared by the Management, that is, non-statutory documents in support of this contention. In view of the statement made by the workman that that he had been engaged on monthly wage basis from 19.10.1991 to 31.12.1992, which stood uncontroverted by any cogent and acceptable evidence, the Labour Court held that he was entitled to the protection of Section 25-F of the Act of 1947 and his termination from service in violation thereof amounted to illegal retrenchment. Accordingly, the Labour Court granted the relief of reinstatement in service along with full back wages, continuity of service and costs. I see no reason to interfere with the Award under challenge in so far as the relief of reinstatement and continuity of service are concerned in as much as the employer failed to produce the statutory record available with it, viz., the muster rolls contemplated under Section 25-D of the Act of 1947. In the absence thereof, the Labour Court was correct in coming to the conclusion that the workman was entitled to the protection of Section 25-F of the Act of 1947 and his termination from service in violation of the procedure prescribed therein, clearly makes out a case of illegal retrenchment. However, there was no material before the Labour Court with regard to the gainful employment of the workman after his termination from service or otherwise. Trite to state, the award of back wages is not an automatic incident and consequence of reinstatement in service. Other factors would have to be considered, including the gainful employment of the workman after his termination from service till reinstatement. No such material was placed before the Labour Court. Therefore, the finding of the Labour Court that the workman was entitled to full back wages is unsustainable. In that view of the matter, the Award under challenge has to be confirmed in so far as the relief of reinstatement in service, continuity of service and imposition of costs are concerned. So far as the issue of back wages is concerned, the learned counsel appearing for the workman fairly conceded that his client was prepared to forego 50% of the back wages awarded by the Labour Court. Accepting this submission, the Award of the Labour Court is modified to that extent reducing the back wages payable to the workman to 50% (fifty percent). It is submitted by the learned counsel that pursuant to the interim direction of this Court in W.P.M.P. No.24834 of 1999 in W.P.No.19802 of 1999 filed by the employer, fifty percent of the back wages has already been remitted to the workman. There is thus no need for any further direction with regard to payment of back wages. The writ petitions are disposed of accordingly. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 7th July, 2009. VGSR / PGS