THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT PETITION No.18226 of 2001 Dated:-26th November, 2010 Between:- B.Yalamanda Rao …Petitioner AND The Manager, Bharat General and Textiles Industries and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT PETITION No.18226 of 2001 ORDER:- Aggrieved by the award dated 16.11.2000 passed in I.D.No.81 of 1993 by the Labour Court, Guntur, the unsuccessful petitioner therein is before this Court as petitioner. 2. The case of the petitioner is that he joined as piece rate worker in M/s.Navabharat Enterprises, Guntur, in the year 1974 and continued to work there till 1989. However, the said factory did not work from the year 1989 to 1990 due to management problems. The first respondent purchased the said factory in March, 1991, and the petitioner continued to work in the same. The previous management of the factory paid an amount of Rs.10,000/- to the petitioner and also to some workers in the month of January, 1999. Subsequently, the petitioner entered into agreement with the first respondent in the month of March, 1991 with regard to his service conditions, rate of work and received an amount of Rs.300/- towards bonus for the year 1992. From the date of purchase of the factory by the first respondent, the petitioner worked continuously with the first respondent and the first respondent used to maintain muster and deduct contributions towards P.F. and E.S.I. from his wages. The case of the petitioner is that his services were terminated orally by the first respondent with effect from 23.01.1993. By that time, the petitioner was getting a wage of Rs.1,500/- per month. Contending that such oral termination is illegal and void, the petitioner raised industrial dispute before the Court below. 3. The first respondent filed counter denying the relationship of employer and employee between them and the petitioner. The specific case of the first respondent is that the petitioner is a member of a Muta headed by the second respondent – Muta Mestri and that the remuneration is paid to the Muta Mestri for the work done by the members of the Muta and that the members of the said Muta distribute such wages among themselves and that it is the Muta Mestri who maintains the musters of the workers of Muta and that there is no employer and employee relationship between them and the petitioner. It is further contended that the petitioner, in his legal notice, contended that he was removed from service by second respondent. 4. The second respondent also filed counter and contended that he is not a necessary party to the litigation. It is his further contention that he had not engaged the petitioner and that he is not a Muta Mestri and that he is also a worker of the first respondent and that the first respondent deducted PF, ESI and maintained musters. The petitioner has also filed a rejoinder contending that he continuously worked from March, 1991 to 23.01.1993 with the first respondent. 5. The Court below framed necessary points for consideration. On behalf of the petitioner, he himself was examined as W.W.1 and Exs.W.1 and W.2 were marked. On behalf of the respondents, M.Ws.1 and 2 were examined and Exs.M.1 and M.2 were marked. The Court below, holding that the petitioner failed to prove that there was any employer – employee relationship between him and the first respondent, dismissed the petition filed by the petitioner, which is under challenge in this writ petition. 6. The main contention of the learned counsel for the petitioner is that the Court below failed to take into consideration that the petitioner continuously worked with the first respondent from March, 1991 till 23.01.1993 and that his services were terminated without issuing any notice. It is also contended that during the period when the petitioner was working with the first respondent, the first respondent had allowed all the benefits such as bonus, PF and ESI and also maintained records deducting contribution of the petitioner towards PF and ESI and that the first respondent failed to adduce any evidence to show that no such deductions were made. 7. A reading of the entire material on record gives an impression that though the petitioner was a member of Muta headed by the second respondent, he continued to work with the first respondent. When the petitioner had categorically mentioned that the first respondent allowed him all benefits such as bonus, PF and ESI and maintained records pertaining to deduction of the contribution towards PF and ESI from his wages, the first respondent ought to have produced those records to disprove the same. Moreover, as seen from the order of the Court below, the first respondent, in its counter, though denied the employer – employee relationship between them, but did not whisper anything about the claim of the petitioner with regard to the deductions of PF and ESI contribution from his wages. The Court below ought to have considered that when the first respondent, in its counter, did not deny the material fact of deduction of PF and ESI contribution from the wage of the petitioner, the same amounts to admission of the contention of the petitioner. 8. In view of the above, it is clear that the findings of the Court below are perverse and not based on the facts of the case and are liable to be set aside. 9. Accordingly, the writ petition is allowed setting aside the award dated 16.11.2000 passed in I.D.No.81 of 1993 by the Labour Court, Guntur. There shall be a direction to the first respondent to reinstate the petitioner into service with continuity of service and full back wages. There shall be no order as to costs. _______________________________ JUSTICE B.CHANDRA KUMAR 26th November, 2010 Bvv