IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 5037 of 2000 Between: ..... PETITIONER AND .....RESPONDENT 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 Counsel for the Petitioner:MR.CH.JAGANNADHA RAO Counsel for the Respondent No.: GP FOR FINANCE & PLANNING The Court made the following : ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{ } ORDER: The Managing Director, A.P.State Handloom Weavers’ Co-operative Society Limited, Narayanaguda, Hyderabad, and the Manager, APCO Cloth Godown, N.G.Colony, Nalgonda, are the petitioners in the writ petition. The writ petition is ﬁled questioning the award dated 11-12-1998 in I.D.No.231 of 1995 passed by the second respondent-Presiding Oﬃcer, Labour Court-III, Hyderabad, directing the petitioner-employer to reinstate the workman-ﬁrst respondent herein into service with continuity of service with other beneﬁts while setting aside the oral order of termination of the petitioner herein. The ﬁrst respondent herein raised a dispute in I.D.No.231 of 1995 under Section 2A (2) of (A.P.Amendment Act 32 of 87) Industrial Disputes Act, 1947 (for brevity ‘the Act’) seeking to set aside the oral illegal removal of the workman by the petitioners and to reinstate the workman into service with continuity of service, all attendant benefits and full backwages. The case of the respondent-workman herein was that he was appointed as a daily wage worker in the petitioner organization on 03-10-1989 by the Manager of APCO Fabrics, Sales Emporium, Subhas Road, Nalgonda, and he worked up to 1991 and thereafter, his services were engaged as Packer on daily wages from 16-12-1992 in APCO Cloth Godown under Assistant Marketing Oﬃcer (Manager), N.G.Colony, Nalgonda, and he continued up to 09-12-1993. Subsequently, the petitioners herein stopped the ﬁrst respondent from attending to the services in order to avoid regularization of his services and removed him from service orally, without issuing any notice or conducting any enquiry and engaged others in his place. Thus, his oral termination is only to help to recruit the employees of the choice of the petitioners herein and to avoid regularization of his services. His case is that he worked for more than three years with the petitioners and did all the duties entrusted to him and he has completed more than 240 days. The services of the respondent-workman were terminated without any notice, therefore, the oral termination is unjustiﬁed and the same is liable to be set aside. On behalf of the petitioners herein a counter was ﬁled denying the averments made by the respondent- workman. On behalf of the workman he himself was examined as W.W.1 and Exs.W-1 to W-7 were marked and for management no one was examined and no documents were marked. Basing on the pleadings and evidence available on record the Labour Court framed a point to consider as to whether the oral termination made by the petitioner-management is unjustiﬁable and the same is liable to be set aside and if so to what relief the respondent-workman is entitled to. On considering the said point the Labour Court passed an award setting aside the oral termination by the management and directed them to take the workman as daily wage worker with continuity of service with other attendant beneﬁts and on the principle of ‘no work no pay’ the workman is not entitled for any backwages. Aggrieved by the same, the present writ petition is filed by the management. Learned counsel appearing for the petitioners submitted that the ﬁrst respondent was not appointed by any competent authority either on daily wage basis or on temporary basis and there was no appointment order, that he was only engaged as and when there was work, and he never worked continuously for 240 days. He also submits that about 790 employees working in the petitioners’ organization availed VRS in 1999-2000. The petitioners-society is running in loss and there is no work for daily wage workmen and there was no post notiﬁed. Therefore, the impugned order is liable to be set aside. On the other hand, learned counsel for the ﬁrst respondent-workman submitted that the workman had proved by producing oral and documentary evidence that he worked for more than three years, and there was no rebuttal evidence adduced on behalf of the petitioner- management. Therefore, based on the evidence on record, the learned Labour Court rightly passed an award setting aside the oral termination and directed for reinstatement of the workman into service on daily wage basis with continuity of service. He also submitted that once the worker is employed on daily wage basis and when it is proved that he worked for more than 240 days Section 25-F of the Act contemplates that without any notice such workman cannot be terminated. For which he relied upon the judgment of the Division Bench of this Court in Divisional Engineer Telecom, Coaxial Cable Project, Rajahmundry v. Mamidi Venkata Ramana and another[1]. In response to the contention of the petitioners that no order of appointment and no order of termination or removal had been issued by the petitioners, therefore, he cannot be said to be employed in the petitioners organization, the learned counsel for the respondent-workman submitted that in case of employment of daily wage employees there may be or may not be any oral order of appointment and also the order of termination. Merely because there is no order of appointment or termination, it cannot be said that they are not employed. He submitted that once the workman proved that he is a workman within the meaning of Section 2(s) of the Act and that he worked for more than 240 days, he acquires a legitimate right of continuity and without there being any order in writing or the notice, the employer is not empowered to terminate the daily wage employee. For which he relied upon the judgment reported in R.M.Yellatti v. The Assistant Executive Engineer[2]. Therefore, he submitted that the learned Labour Court considering the facts and circumstances of the case and the evidence on record held that the workman was orally engaged and he worked for more than 240 days and without there being any notice the workman was orally terminated, therefore, that termination is held to be illegal and consequently, directed for reinstatement of the workman on the daily wage basis and ordered for continuity of service, thereby, the Labour Court did not commit any legal error which warrants the interference of this Court under Article 226 of the Constitution of India. Therefore, he submitted that the writ petition is liable to be dismissed. Whenever a workman within the meaning of Section 2 (s) of the Act is terminated from service, he is entitled to seek appropriate reddressal for reinstatement and attendant beneﬁts by way of making an application under Section 2A(2) of the Act. The Labour Court, while entertaining the said application, after conducting due enquiry and exercising the power under Section 11-A of the Act, if it satisﬁes that the order of discharge or dismissal was not justiﬁed, it may, by its award, set aside the order of discharge or dismissal and direct the reinstatement of the workman on such terms and conditions, if any, as it thinks ﬁt or give such of the relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Therefore, in the process of exercising the power under Section 11-A of the Act what is to be done by the Labour Court is, based on the evidence on record it should satisfy that the order of discharge or dismissal was not justified. Now, whether such a power as contemplated under Section 11-A of the Act was exercised by the Labour Court while passing of the award or not is to be seen in this writ petition. The workman, during the course of examination before the Labour Court, has deposed that he was appointed by the management on 03-10-1989 at Nalgonda in the APCO Fabrics Sales Emporium. Subsequently, he was transferred to APCO Cloth Godown on 16-12-992 and he worked in godown up to 09-12-1993. On the same day his services were terminated orally. He was not issued any notice or any compensation before his services were terminated. He was paid daily wages including overtime allowance. His work was to receive the goods and transfer the same to diﬀerent shops and taking their acknowledgments. Ex.W-1 is the document showing the signature of the customers to whom the goods were handed over by him. The workman was also paid over time wages. Ex.W-2 is showing the payment of overtime allowance. He was paid monthly salaries through vouchers. He has also issued a legal notice-Ex.W- 3 to the Management showing the details of payment. Ex.W-4 contains nine pages showing his receiving wages and he also received overtime wages through vouchers under Ex.W-5 which contains 12 pages. He also used to transfer the goods of the society by way of postal receipts through registered post which are in pages 22, 23 and 24, which are marked as Ex.W-6 and they are all in his hand writing. Thus, the documents show that the workman worked with the petitioners continuously. During his working period in the oﬃce of the petitioners, the respondent used to transfer the goods from their oﬃce to other sales emporium though GT bills, RP bills containing at page 26 and 27 which were marked as Ex.W- 7. All the documents i.e., Exs.W-4 to W-7 are in his hand writing which goes to prove that he worked with the petitioners for more than 240 days, and as such he cannot be terminated from service without assigning any reason and without any notice. In rebuttal of the said evidence, no evidence was adduced on behalf of the management on the other hand. The petitioners had admitted that the respondent-workman worked on daily wage basis but their contention was that he did not work for more than 240 days. On appreciation of the evidence on record, the Labour Court came to the conclusion that the respondent- workman had worked for more than 240 days continuously. In the instant case, the workman had produced ample evidence i.e., Exs.W-1 to W-7 and he authenticated the same by leading the evidence on his own, but whereas the petitioner-management had failed to disprove the claim of the respondent-workman. Whether the workman has worked or not it should be based on the evidence on record. Being a fact ﬁnding authority, the Labour Court while exercising the power under Section 11-A of the Act came to the conclusion that the workman had worked for more than 240 days continuously, and that fact cannot be gone into under Article 226 of the Constitution of India which being a question of fact. What is to be seen by this Court is that in the process of exercising the said power under Section 11-A of the Act whether there was any perversity in the award passed by the Labour Court. In the instant case, I could see no such perversity in the award passed by the Labour Court. When a workman has continuously worked for more than 240 days and if such workman is sought to be terminated without following the due process of law contemplated under Section 25-F of the Act, such termination order is illegal, whether it is by way of oral termination or a termination in the form of an order. That position has been clariﬁed by the Division Bench of this Court in the case reported in 1 supra at para 11, which reads as under: “The provisions of Section 25-F are emphasizing that whoever works for more than 240 days in a period of one year shall be terminated only after following the procedure prescribed under Section 25-F. It is an established principle that failure to follow the procedure prescribed under Section 25-F cannot make the retrenchment valid. I n H.D.Singh v. Reserve Bank of India and others[3] the Supreme Court held that the retrenchment made without following the mandatory provisions of Section 25-F is invalid. The learned Single Judge rightly observed that the 1st respondent herein worked for more than one year, therefore he is entitled for the beneﬁts under Section 25-F of the Act on his termination and as there is non-compliance of the said provision, the termination of the 1st respondent is invalid. The learned Judge further observed that there was no error in the award passed by the Labour Court. In the light of the above legal position, we ﬁnd no ground to interfere with the judgment of the learned Single Judge on this point. We accordingly conﬁrm the judgment of the learned Single Judge directing reinstatement of the 1st respondent into service.” In the instant case, the respondent-workman proved that he worked for more than 240 days and his service has been terminated orally without notice as contemplated under Section 25-F of the Act. On appreciation of the evidence, the Labour Court rightly held that such an oral termination order is illegal and accordingly the same has been set aside. Coming to the contention of the learned counsel for the petitioners that as there is no written order of appointment or termination, the learned Labour Court ought not have gone into the merits of the case and ought to have dismissed the ID. In the process of making appointment by the management in an industry,the management may not be issuing appointment orders to all the workmen and invariably it engages several people on daily wage basis. Therefore, it is not necessary that unless and until a person is being issued an order of appointment can only be treated as workman within the meaning of Section 2(s) of the Act, but it is mere enough the workman proves that he had been employed in the management. Therefore, the contention of the learned counsel for the petitioners that the ﬁrst respondent-workman was not issued any written order of appointment or removal and he cannot be termed as a workman within the meaning of Section 2(s) of the Act, cannot be accepted. This position is made clear by the Apex Court in the case reported in 2 supra at para 14, which reads as under: “Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the oﬃcers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certiﬁed by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated oﬃcers and that at the time of termination, the concerned designated oﬃcers should give certiﬁcates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government.” Having regard to the facts and circumstances of the case and after considering the entire evidence on record, the Labour Court passed the impugned award setting aside the oral termination order by the petitioners and directed the petitioners to take the workman as a daily wage worker with continuity of service with all other benefits, but denied the backwages. The writ petition was admitted on 29-03-2000 and on 20-09-2001 this Court granted the interim stay of the award on the condition of petitioners complying with Section 17-B of the Act within a period of four weeks. Learned counsel for the petitioners submitted that in compliance of the interim order passed by this Court the petitioners had been complying with Section 17-B of the Act. Recording the same and having regard to the facts and circumstances of the case, I am of the view that the impugned award does not suﬀer from any legal inﬁrmity which warrants this Court to interfere with the same under Article 226 of the Constitution of India and on the other hand the Labour Court had rightly exercised the power under Section 11-A of the Act and passed appropriate orders in accordance with law. Therefore, I see no reason to interfere with the impugned order as such. Accordingly, the writ petition is dismissed. No order as to costs. __________________ 17th September, 2008 SKM [1] 2003 (3) ALD 290 (DB) [2] MANU/SC/1607/2005 [3] AIR 1986 SC 132