THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.16984 OF 2006 O R D E R Heard both the counsel. 2. Petitioner is the workman. Aggrieved by the award dated 10.02.2006 passed by the Industrial Tribunal-cum-Labour Court at Warangal in I.D.No.129/2003, in dismissing the I.D. and thereby confirming the termination of the workman, the present writ petition is filed. 3. The case of the petitioner is that he was engaged as driver under the respondents in the year 1992. He was discharging his duties without any blame and he was orally terminated in the year 2002. The 1st respondent is the administrative in-charge, the 2nd respondent is the principal employer and the 3rd respondent is the pay and Accounts Officer. The petitioner in the year 2001, approached A. P. Administrative Tribunal seeking a direction to the respondents to regularize his services and for payment of wages from 1.10.2001 onwards. The Tribunal directed the respondent to continue the petitioner, but all of a sudden, the 1st respondent terminated the petitioner from service with effect from 28.2.2002 without giving any prior notice or paying compensation. Hence, the termination is illegal and arbitrary. In fact salary bill for the period from 1.10.2003 to 31.12.2001 was sent by respondent no.1 to respondent no.3 and he raised an objection for passing the bill. Aggrieved by the termination, the petitioner raised I.D. 4. The respondents filed counter affidavit denying the averments made by the petitioner and stated that the services of the petitioner was availed some times on contract basis and that he was never appointed to any post and there is no sanctioned post and as the petitioner was not appointed by any competent authority, the question of his termination does not arise. With these averments, the I.D. was sought to be dismissed. 5. The Tribunal based on the above pleadings, framed the following issues for consideration: 1. Whether the petitioner is a workman? 2. Whether the alleged termination is illegal? 3. Whether the petitioner is entitled for reinstatement? 4. To what relief? 6. In support of the case of the petitioner, W.Ws.1 and 2 were examined and Exs.W-1 to W-13 were marked. On behalf of the respondents no evidence either oral or documentary has been adduced. 7. Appreciating the evidence on record, the Tribunal held that the petitioner failed to prove that he worked for 240 days preceding the year of termination and that as he was not appointed by any competent authority to a sanctioned post, there is no question of regularization. Accordingly, the I.D. was dismissed. Challenging the same, the workman filed the present writ petition. 8. The learned counsel for the petitioner reiterating the averments made in the claim petition in I.D., further submitted that the petitioner was engaged as driver under the 1st respondent – Executive Engineer, R.W.S. Divisional Warangal and he worked from 1992 to 2002 for a period of ten years without any break and with effect from 28.2.2002, his services were terminated orally. He stated that the Tribunal also found that the petitioner was a workman engaged on piece rated basis. He stated that the claim of the petitioner is that he worked continuously for 240 days preceding the year of termination and the same is supported by Ex.W-11, letter addressed by P.Venkat Reddy, Executive Engineer to the Superintendent Engineer and the same was also considered by the Tribunal and found that the petitioner is the workman. He stated that apart from producing Exs.W-1 to W-13, the petitioner has filed I.A.No.396/2003 in I.D.No.129/2003 seeking the Tribunal to direct the respondents to produce the document viz., payment register for the period from January, 1998 to February, 2002. By order dated 24.6.2004, the said I.A. was allowed. But, in spite of the same, the respondents have not produced the said documents and, therefore, an adverse inference has to be drawn and in view of the finding of the Tribunal that the petitioner is a workman worked under the respondents, it has to be presumed that the petitioner worked continuously for 240 preceding the year of termination. He contended that the provisions contemplated under Section 25-F of the Industrial Disputes Act, 1947, (for short ‘the Act’) have not been complied with before terminating his serevice and hence this amounts to illegal termination and the petitioner is entitled to all the consequential benefits. In support of his contention, he relied on the judgments of the Apex Court reported in SRIRAM INDUSTRIAL ENTERPRISES LTD. v. MAHAK SINGH[1] and R.M.YELLATTI v. ASSTT. EXECUTIVE ENGINEER[2]. He further contended that the Tribunal found that the initial appointment of the petitioner as illegal, as there was no sanctioned post and there was also ban on recruitment and that the appointment made by incompetent authority, is illegal. Relying on the judgment of the Apex Court reported in DEVINDER SINGH v. MUNICIPAL COUNCIL[3] the learned counsel contended that the method of recruitment inter alia was not relevant for deciding whether a person was or was not a workman within the meaning of Section 2(s) of the Act, and that when it is found that the termination is in violation of Section 25-F, he is entitled for reinstatement with consequential benefits. With these averments, he sought to set aside the impugned award and allow the writ petition. 9. On the other hand, the learned counsel appearing for the respondents supporting the impugned award, sought for dismissal of the writ petition. 10. In view of the above rival contentions, the point that arises for consideration is whether the impugned awards warrants any interference? 11. The case of the petitioner is that he was engaged by the respondents as driver during the year 1992 and that he was terminated on 28.2.2002, orally, in violation of Section 25-F of the Industrial Disputes Act, 1947. On the other hand, the case of the respondents is that the petitioner was not appointed by any competent authority and his services were availed on contract basis. In this regard it is necessary to note the relevant portion in Ex.W-11 letter addressed by one P.Venkat Reddy, Executive Engineer to the Superintendent Engineer, as under: “With reference to the Superintending Engineer’s memo cited, I submit that the RWS Division, Warangal was formed in February, 1997. Consequent on formation of RWS Division, the works pertaining to water supplying schemes including the maintenance of hand pumps were brought under the control of RWS sector. But there is no sufficient staff to maintain and carry out the repairs to hand pumps. Hence, it is felt very essential to engage certain individuals to keep the hand pumps in working condition to provide drinking water in the rural areas. Accordingly the following were engaged on piece rate basis by Dy. Executive Engineer with break of one or two days in every month up to end of September, 2001:-- 1. M.Srinivas. 2. N.Revinder. 3. N.Devender. The person in Sl.No.1 was engaged as driver on Government Jeep APO-922, pertaining to RWS Sub Division, Mulugu as there was no driver on the above jeep. The person in Sl.No.2 was engaged as Pump Mechanic for maintenance of hand pumps in Eturnagaram mandal of RWS Sub Division, Eturunagaram. The person in Sl.No.3 was first engaged as Pump Mechanic for maintenance of hand pumps in RWS Sub Division, Parkal, subsequently engaged as lab attendant to assist Junior water Analyst in water sample collection since April, 2002 as there is no staff provided to Internal water quality monitoring laboratory at Mulugu. In this connection I submit that in view of introduction of LOC system in P.R. Department the payment control of work staff establishment salaries was transferred to PAO, SRSP Hanamkonda w.e.f. 1-4-2001 have raised objection to pay the wages of above persons directly and advised to follow the piece work contract system for maintenance of hand pumps. In view of the above engaging of persons for maintenance of hand pumps etc., were dis-engaged w.e.f. 1.10.2011 in this division and Dy Executive Engineers have been transferred accordingly vide this office Memo dt.18-10-2001. I further submit that this division has jurisdiction over 21 mandals of Warangal District. There is no driver of the Jeep APO- 922. One Pump Mechanic was retired from service, one Pump Mechanic was expired. One pump mechanic was relieved on appointment as Panchayat Secretary on 9-8-2002. Generally one had pump mechanic is required to each mandal for maintenance of hand pumps. Out of 21 mandals, only 13 hand pump mechanics are working in this division. There is shortage of Hand pump mechanics also. There is no lab attendant provided for assisting the junior water analyst in Mulugu Laboratory. In view of the above circumstances, I request the Superintending Engineer to kindly arrange to consider the representations of above three persons.” 12. The above letter indicates that the petitioner was engaged as driver on piece rate basis, due to non-availability of driver for carrying out the water supply scheme by the State Government. Based on the material evidence, the Tribunal also found that the petitioner is a ‘workman’ as defined under Section 2(s) of the Act. 13. The claim of the petitioner is that he worked continuously for more than 240 days preceding the year of termination. In order to prove the same, the petitioner filed I.A.No.396/2003 in I.D.No.129/2003, for directing the respondents to produce the documents i.e., payment register for the period from January, 1998 to February, 2002. By order dated 24.6.2004, the said I.A. was allowed. The relevant portion of the order is extracted as under for better appreciation: “3. Perused the records available and also submissions made by both the sides. I am satisfied. The petitioners are engaged by the respondents or by any contractor and paid wages to the petitioners. To meet the ends of justice I feel to call for the records available with the respondents regarding payment of wages. Accordingly the petition is allowed directing the respondents to produce what are the records available relating to the petitioners or contractor regarding payment of wages.” 14. The above order has become final and there was no appeal. In view of the above order of the Tribunal, the respondents ought to have produced the documents sought for by the petitioner. But there is no material on record to show that such documents were produced. The Tribunal has not considered this aspect at all. The Apex Court in SRIRAM INDUSTRIAL ENTERPRISES LTD. v. MAHAK SINGH (supra) in similar facts and circumstances, where the workman filed application for summoning the documents, which were in the possession of the management and on failure to produce such documents, the High Court had drawn an adverse inference in terms of Section 114 illustration (G) of the evidence Act, the Apex Court has upheld the same. The relevant contentions in this behalf and the conclusion of the Apex Court, is extracted as under better appreciation: “24. Mr. Viswanathan submitted that in these cases, the workmen had discharged their initial onus by producing whatever documents were in their custody. The onus had thereafter shifted to the petitioner when the workman asked for production of attendance register and the muster rolls from 1991 onwards. On the failure of the petitioner to produce the said documents, the High Court has rightly drawn an adverse presumption. 26. Mr. Vishwanathan urged that the workmen has produced whatever documents were in their possession, such as, attendance cards, wage slips, bonus slips, provident fund deduction slips from 1991 onwards and since other relevant documents such as attendance registers and muster rolls were with the petitioners, the workmen filed an application for summoning the said documents which were, not however, produced by the petitioner on account whereof the High Court was completed to drawn an adverse presumption in terms of Section 114 Illustration (g) of the Evidence Act. 34. Having correctly interpreted the provisions of Section 6-N of the U.P.Act, the High Court rightly drew an adverse presumption for non-production of the attendance registers and the muster rolls for the year 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this court on the question of burden of proof in Range Forest Officer Case (2002)3 SCC 25 were watered down by the subsequent decision in R.M.Yellati case {(2006)1 SCC 106} and in our view the workmen had discharged their initial onus by production of the documents in the possession.” 15. From the above judgment of the Apex Court it is clear that if the workman discharges his onus of producing the documents in his possession and if he seeks to summon the management to produce documents in their possession, pertaining to attendance register and muster rolls, and if the management fails to produce such documents, an adverse presumption as envisaged under Section 114 illustration (g) of the Evidence Act, can be drawn. 16. In the present case, the petitioner has produced Exs.W-1 to W-14 viz., identity card of the petitioner, memo dated 1.4.1999, representation of the petitioner, order forms of Visweshara Service Station, Warangal, Xerox copy of the charge handover letter of the petitioner, Xerox copy of cash bill of Balaji Auto Mobiles, Xerox copy of letter from D.M.H.O. Warangal, and other documents, which are in his possession. He sought to produce payment registers for the period from January, 1998 to February, 2002. 17. Therefore, it is clear that the workman discharged his initial onus of producing the documents in his possession and sought the respondents to produce payment register for the period from 1998 to February, 2002. The management failed to produce the documents sought for by the workman, though there is an order of the Tribunal to that effect. Therefore, for non-production of the documents by the respondents, an adverse presumption has to be drawn in view of Section 114 Illustration (g) of the Evidence Act. 18. In view of the documents produced by the petitioner and particularly Ex.W-11, which shows that he was engaged on contract basis, and further his claim that he worked for 240 days preceding the year of termination, and that he produced the relevant documents in his possession and as the management failed to produce the documents sought for by the workman, presumption that the workman worked for 240 days preceding the year of his termination, is drawn in favour of the workman. The approach of the Tribunal below, in the light of the present facts and circumstances, in recording the finding that the petitioner failed to prove that he worked for 240 days preceding the year of termination, oblivious of the order in the I.A.No.396/2003 in I.D.No.129/2003 dated 24.6.2004 and in the light of the judgment of the Apex Court, is perverse and the same is liable to be set aside. 19. Admittedly the petitioner is a workman and he could prove by presumption that he worked for more than 240 days. The Apex Court in L.Robert D’Souza v. Executive Engineer[4] held that even a daily rated worker would be entitled to protection of Section 25-F of the Act, if he is had continuously worked for a period of one year or more. The relevant portion is as under: 27. There is no dispute that the appellant would be a workman within the meaning of the expression in Section 2 (s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over 20 years. Therefore, the first condition of Section 25-F that appellant is a workman who has rendered service for not less than one year under the Railway Administration, an employer carrying on an industry, and that his service is terminated which for the reasons hereinbefore given would constitute retrenchment. It is immaterial that he is a daily-rated worker. He is either doing manual or technical work and his salary was less than Rs 500 and the termination of his service does not fall in any of the excepted categories. Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pro-conditions to valid retrenchment, the order of termination would be illegal and invalid. 20. The Tribunal recorded that the petitioner was not appointed by any competent authority, and that too when there was ban on appointments and hence it amounts to illegal appointment and therefore, the question of regularization does not arise. In the present case, the Tribunal also categorically recorded finding of fact that the petitioner is a workman. The grievance of the workman is that he was terminated in violation of the principles of natural justice. Apex Court in DEVINDER SINGH v. MUNICIPAL COUNCIL (supra) held that neither the method of recruitment nor conditions of employment are relevant for deciding the status of a person as workman and that termination of a workman from service without following Section 25-F, is illegal. The relevant facts and the law laid down by the Apex court in the said judgment, is extracted as under for better appreciation: “13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. 22. We may now advert to the impugned order. A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour court for reinstatement of the appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S.Radhakrishnan AIR 1964 SC 477, Swaran Singh v. State of Punjab AIR 1976 SC 232: (1976)2 SCC 868, P.G.I. of MEDICAL EDUCATION & Research, Chandigarh v. Raj Kumar AIR 2001 SC 479 : (2001)2 SCC 54 : 2001-I-LLJ-546, Surya Dev Rai v. Ram Chander Rai AIR 2003 SC 3044 : (2003)6 SCC 675 and Shalini Shyam v. Rajendra Shankar Path (2010)8 SCC 329. 24. We are also convinced that the reasons assigned by the High Court for setting aside the award of reinstatement are legally untenable. In the first, it deserves to be noticed that the respondent had engaged the appellant in the back drop of the ban imposed by the State Government on the filling up of the vacant posts. The respondent had started a water supply scheme and for ensuring timely issue of the bills and collection of water charges, it needed the service of a clerk. However, on account of the restriction imposed by the State Government, regular recruitment was not possible. Therefore, resolution dated April 27, 1995 was passed for engaging the appellant on contract basis. . . . 25. In furtherance of the aforesaid resolution, the respondent engaged the appellant, who was already in its employment, as a clerk for a period of six months on contract basis on consolidated salary of Rs.1,000/- per month. At the end of six months, the respondent passed another resolution dated November, 30, 1995 and again employed the appellant for a period of six months from November, 1, 1995 to April 20, 1996. This exercise was repeated in 1996 and the appellant’s terms was extended for six months from May 1, 1996. However, his engagement was discontinued w.e.f. September 30, 1996 without giving any notice or pay in lieu thereof and compensation as per the requirement of Clauses (a) and (b) of Section 25-F of the Act. It is true that the engagement of the appellant was not preceded by an advertisement and consideration of the competing claims of other eligible persons but that exercise could not be undertaken by the respondent because of the ban imposed by the State Government. It is surprising that the Division Bench of the High Court did not notice this important facet of the employment of the appellant and decided the writ petition by assuming that his appointment/engagement was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that failure of the Director, Local Self Government, Punjab to convey his approval to the resolution of the respondent could not be made a ground for bringing an end to the engagement of the appellant and that too without complying with the mandate of Section 25-F(a) and (b). . . 27. The plea of the respondent that the action by it is covered by Section 2(oo)(bb) was clearly misconceived and was rightly not entertained by the Labour Court because no material was produced by the respondent to show that the engagement of the appellant was discontinued by relying upon the terms and conditions of the employment. 28. In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the appellant is restored. If the respondent shall not reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within a period of three months from the date of receipt/production of the copy of this order.” 21. At the cost of repetition in the present case, the petitioner was engaged as driver on Government jeep, as there was insufficient staff and to carrying out the works pertaining to water supplying schemes including the maintenance of hand pumps. The Executive Engineer addressed letter under Ex.W-11 stating the circumstances of their engagement and sought the Superintendent Engineer to consider the representations of the above three persons. Further, the petitioner, who is a workman as described under Section 2(s) of the Act, could prove based on the material evidence, that he served for 240 days preceding the year of termination. In these circumstances, and following the judgment of the Apex Court (supra) in similar circumstances, I am of the considered view that termination of the petitioner, without complying the statutory provisions under Section 25-F of the Act, is illegal and contrary to the principles of natural justice and the same needs to be set aside. 22. For the foregoing reasons, and having regard to the facts and circumstances of the case, the impugned award of the Tribunal, is set aside and the respondents are directed to reinstate the petitioner into service forthwith, with continuity of service and attendant benefits, without any back wages. 23. The writ petition is accordingly allowed, but in view of the facts and circumstances, without costs. AVS ------------------------------- 15—09—2011 [1] (2007)1 SCC (L&S ) 961 [2] 2006 Supreme Court Cases (L & S) 1 [3] 2011-III-LLJ-1 (SC) [4] AIR 1982 SC 854