THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. No. 16365 of 2006 O r d e r: Aggrieved by the award dated 20.03.2006 passed by the Labour Court, Visakhapatnam in I.D. No. 153 of 1999, insofar as it denied reinstatement with full backwages and continuity of service, as illegal and arbitrary, the petitioner filed this writ petition. The petitioner joined the service of respondent No.2- Rajahmundry Municipal Corporation as NMR Pipeline Cleaner in the Water Works Department on 01.03.1994 on daily wages, and he claims to have continued as such till 17.02.1996, on which day, respondent No.2 terminated his services along with his other co- workers illegally without following the procedure contemplated under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). Assailing the said action of respondent No.2, the petitioner raised an industrial dispute in I.D. No. 153 of 1999 on the file of the Labour Court, however, by award dated 04.06.2001, Labour Court dismissed the I.D. holding that as the petitioner was not taken as a regular workman and as his services were engaged only as a daily wage earner, he is not entitled to reinstatement. Questioning the said award, the petitioner filed writ petition in W.P. No. 20272 of 2001, and this Court by order dated 08.08.2005 set aside the award and remitted the I.D. to the Labour Court, for considering the issue relating to whether the petitioner worked continuously for 240 days between 1992 and 1996. Accordingly, the Labour Court, having considered the issues raised by the petitioner in the I.D., passed the impugned award dated 20.03.2006 holding that the petitioner worked for 240 days with respondent No.2, and in his retrenchment, respondent No.2 had to follow the provisions of Section 25-F of the Act, and since respondent No.2 had retrenched the petitioner from service without following the provisions of Section 25-F of the Act, the Labour Court held that the petitioner is entitled to 15 days wages per year as compensation instead of reinstatement into service as he was engaged as a daily wage earner, and accordingly awarded wages at Rs.1050/- and compensation at Rs.750/-. The learned counsel for the petitioner submitted that the Labour Court having recorded a finding that the petitioner had worked for 240 days, and having found that the retrenchment of the petitioner was in violation of the provisions of Section 25-F of the Act, ought to have directed respondent No.2 to reinstate the petitioner into service with back wages since the termination of the petitioner was ab initio void, but it committed an error in directing payment of compensation in lieu of reinstatement on the ground that the petitioner was engaged as a daily wager and that he is not a regular employee of respondent No.2. He further submitted that respondent No.2 being the employer of the petitioner for denying reinstatement and backwages, had to plead and establish that it is unable to engage the workman due to non-availability of work, and in the absence of any such pleading made by respondent No.2, the Labour Court committed an error in directing payment of compensation in lieu of reinstatement, and more so when the work performed by the petitioner, was sought to be got done through a Contractor, and this is evident from the fact that after retrenchment of his services, the petitioner was engaged through the Contractor for performing the very same work which he performed prior to his retrenchment. He submitted that since the award of the Labour Court suffers from errors apparent on the face of the record, the same is liable to be set aside, and accordingly prayed that the award be set aside and the writ petition be allowed with all consequential reliefs. In support of his submissions, he placed reliance on the Larger Bench judgment of the apex Court in Punjab L.D. & R.C. Ltd Etc. v. P.O. Labour Court, Etc. Etc.[1] and the judgment of this Court in B. Trinadha Rao v. Presiding Officer, IT-cum-LC, Visakhapatnam[2]. On the other hand, the learned counsel for respondent No.2 supported the impugned award. He submitted that the petitioner was not engaged in a regular vacancy. As there is no work available with respondent No.2, the petitioner along with others was retrenched from service. He submitted that there is no evidence to show that the petitioner worked for 240 days. He, however, contended that even though the Labour Court found that in the retrenchment of the petitioner, respondent No.2 had violated the provisions of Section 25-F of the Act, but since the petitioner is a daily wager and not a regular employee of respondent No.2, the Labour Court has rightly directed payment of compensation in lieu of reinstatement, and no exception can be taken thereto. He submitted that even if the Labour Court finds that the termination of services of workman was made in violation of Section 25-F of the Act and that such retrenchment is ab initio void, yet that by itself does not result in automatic reinstatement of the workman into service with full backwages, and the Labour Court for just and valid reasons, has discretion to award compensation in lieu of reinstatement, and in support of this argument, he placed reliance upon the judgment of this Court in Md. Hyder v. Industrial Tribunal- II[3]. He, thus prayed that the writ petition be dismissed. Having heard the learned counsel for the petitioner and the learned counsel for respondent No.2 and perused the impugned award, the only question that arises for consideration in the writ petition is whether the Labour Court having found that the termination of the petitioner from service was in violation of Section 25-F of the Act, was justified in directing payment of compensation in lieu of his reinstatement into service with back wages? Though respondent No.2 before the Labour Court in the counter has taken a stand that the petitioner never worked continuously for more than 89 days, and that from 01.04.1996 respondent No.2 had awarded the work of water discharging system to a contractor, through whom the petitioner and others were engaged, the fact remains, the witness examined by respondent No.2 on its behalf as M1 in his cross- examination stated that they used to engage the services of the petitioner continuously for 89 days, and thereafter, give break in service for one or two days, and that the petitioner worked in such fashion between 1992 to 1996, and that before retrenching the petitioner from service from 17.02.1996, they have not given any notice to the petitioner, and that after his retrenchment, they have entrusted the works to the contractor, through whom the petitioner was again engaged. Though respondent No.2 has taken a stand that the works relating to water discharging system were entrusted to a Contractor through whom the petitioner was engaged again, the fact remains, no material whatsoever was placed to substantiate such a contention. Further, though M1 in his evidence stated that they used to maintain the muster rolls, yet failed to produce the same. In such circumstances, the Labour Court drew an adverse inference that the petitioner worked for more than 240 days in those years. Though the Labour Court has recorded a finding that the petitioner had worked for more than 240 days, respondent No.2 has not assailed the said finding by filing separate writ petition, and therefore, it has to be held that the said finding has become final. M1 in his evidence admitted that no notice was issued to the petitioner before he was retrenched from service from 17.02.1996 and no compensation was paid to him. Since the Labour Court found that the petitioner worked for more than 240 days, the termination of the petitioner from service by respondent No.2, without giving notice, without paying compensation and without serving notice on the appropriate government, was in clear violation of the provisions of Section 25-F of the Act. Respondent No.2 having not complied with the mandatory provisions of Section 25-F of the Act, the petitioner was entitled to reinstatement into service, and even though the Labour Court held that the petitioner was entitled to the benefit of Section 25-F of the Act, yet it refused to reinstate the petitioner into service on the ground that the petitioner was a daily wager and that he was not a regular employee, recruited by following the procedure prescribed for recruitment, and therefore, instead of reinstatement directed payment of compensation. This finding of the Labour Court, cannot be sustained, for once it is found that the petitioner had completed 240 days, and his retrenchment from service is in violation of the provisions of Section 25-F of the Act, then he is entitled to reinstatement into service. May be the petitioner is a daily wager, but that by itself does not disentitle him to the benefit of reinstatement when once it is found that his retrenchment was in violation of the provisions of Section 25-F of the Act, and since the petitioner was not claiming the benefit of regularization of his service, by virtue of the order of reinstatement, he would be reinstated into service as a daily wager on casual basis, as was his position prior to the date of his retrenchment. It is the contention of respondent No.2 that since no work is available, the petitioner cannot be reinstated into service. I am unable to accept this contention of respondent No.2, for the reason that respondent No.2 in the counter filed before the Labour Court has not pleaded that there is no work available, and on the other hand, it is their specific case that they have entrusted the work relating to work discharging system to a Contractor, through whom the petitioner was again engaged, and it is also their admitted case that the work relating to work discharging system, which the petitioner was performing prior to his retrenchment, is perennial in nature. Respondent No.2 having not pleaded and established non-availability of work, and on the other hand, their own stand indicates that the work performed by the petitioner before his retrenchment, is still in existence, which in fact, was entrusted to and is being carried out through a Contractor, through whom again the petitioner was engaged, cannot be allowed to contend that since there is no work available with respondent No.2, the petitioner cannot be reinstated into service, and in such circumstances, payment of compensation, as directed by the Labour Court, in lieu of retrenchment, would meet the ends of justice. In fact, this Court in B. Trinadha Rao v. Presiding Officer, IT-cum-LC, Visakhapatnam, had held that once the Labour Court finds that the retrenchment is in violation of the provisions of Section 25-F of the Act, existence of ban orders for recruitment, would not come in the way of the Labour Court granting the relief of reinstatement following illegal termination of a workman. Since the retrenchment of the services of the petitioner is illegal and in violation of the provisions of Section 25-F of the Act, he is entitled to the benefit of reinstatement. However, it may be noticed whether the petitioner is entitled to be granted backwages upon reinstatement. The petitioner, admittedly, did not assail his retrenchment immediately, but assailed the same by filing I.D. after lapse of two years from the date of his retrenchment. Since there is delay on the part of the petitioner in filing I.D. assailing the retrenchment, I am of the considered opinion that he should be denied backwages for the period from the date of his retrenchment till the date of his filing I.D. and should be granted backwages from the date of filing the I.D. till date. However, having regard to the fact that the petitioner after his retrenchment is said to have worked for the respondents through a Contractor, I am of the considered opinion that ends of justice would be met, if the petitioner is directed to be paid only 50% backwages, for the period for he is directed to be paid. In that view of the matter, it has to be held and is accordingly held that the Labour Court having found that retrenchment of the petitioner was in violation of the provisions of Section 25-F of the Act, was not justified in denying the benefit of reinstatement of the petitioner into service with backwages. In the result, the writ petition is allowed. The impugned award of the Labour Court is set aside. Respondent No.2 is directed to reinstate the petitioner into service with 50% backwages from the date of filing the I.D. till the passing of this order. This order, however, does not preclude respondent No.2 from taking steps to retrench the petitioner from service by following the provisions of Section 25-F of the Act. No costs. _________________ N.V. RAMANA, J. Date: 1st February, 2008. KSR [1] 1990-II-LLJ-70 [2] 2007 (4) ALD 346 [3] 2006 (1) ALT 578