IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIFTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.879 OF 1999 Between: The Administrative Officer, M/s. Sailors Residential Buildings, Maintenance Committee, Navasena Baugh, Sailors Residential Area, VISAKHAPATNAM 530 005 ..... PETITIONER AND 1 P.APPA RAO. S/o. Late Sri Durgalu, R/o. D.No.60-22-40, Prakash Nagaram, Malkapuram Post, Visakhapatnam. 2 The Chairman & Presiding Officer, Industrial Tribunal Cum Labour Court, Visakhapatnam .....RESPONDENTS 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 issue a writ, order or direction more particularly one in the nature of a Writ of 'Certiorari' and quash the Award of the 2nd respondent passed in I.D.No.296 of 1995, dated 5th May, 1998 and the consequential Gazette publication in G.O.Rt.No.1275, dated 23.07.1998 declaring the award as unjust, illegal and against the State and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstance of the case. Counsel for the Petitioner : MR.S.S.VARMA (ADDL CGSC) Counsel for the Respondent : MR.V.PADMANABHA RAO The Court made the following : THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.879 OF 1999 O R D E R The Award dated 05.05.1998 passed by the Industrial Tribunal- cum-Labour Court, Visakhapatnam, in I.D.No.296 of 1995 is subjected to challenge in this writ petition. By the said Award, the Labour Court directed reinstatement of the workman in service with back wages and continuity of service along with costs of Rs.500/-. The respondent in the I.D. challenges the said Award on the ground that the workman was engaged as a domestic servant by the residents of Nausena Bagh Colony to look after the safety, security and sanitation of the Sailors residential area viz., Nausena Bagh Colony. The workman and other such similar workers were paid on daily basis and their remuneration was paid out of the contributions made by the residents of the colony. It is the case of the writ petitioner before this Court that the workman was not engaged in an ‘industry’ entitling him to invoke the provisions of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’). The writ petitioner denied that there was a relationship of employer and employee between itself and the workman in as much as the workman and other such similarly placed persons were only employed on daily wage basis and the same cannot be termed to be continuous employment. The petitioner therefore prayed for quashing of the Award. This Court, while granting stay of the Award under challenge, by order dated 22.01.1999 directed the writ petitioner to comply with the provisions of Section 17-B of the Act of 1947 and to deposit half of the back wages awarded by the Labour Court within a stipulated time. The said interim order was modified in appeal by a Division Bench of this Court, directing the deposit of half of the back wages in a fixed deposit in any nationalized bank and the same was directed to be paid to the successful party after the conclusion of this litigation. Heard Sri S.S.Varma, learned counsel for the writ petitioner and Sri V.Padmanabha Rao, learned counsel for the respondent workman. Sri S.S.Varma, learned counsel, contended that the respondent- workman was not engaged in an industry as he was only a domestic servant employed in the residential colony. He further contended that the respondent-workman failed to establish that he had worked for the requisite 240 days to assert and establish violation of Section 25-F of the Act of 1947. However, the rejoinder filed by the writ petitioner before the Labour Court demonstrates that the writ petitioner failed to take the plea that the respondent-workman was not engaged in an industry, and that the provisions of the Industrial Disputes Act would therefore be inapplicable to him. In the absence of a plea before the Labour Court that the respondent- workman was not engaged in an industry, it is not open to the petitioner to introduce a new ground in Certiorari proceedings before this Court. Further, except for a bald denial that the workman was not continuously employed, the petitioner did not choose to adduce any documentary evidence before the Labour Court to substantiate its stand. The Award of the Labour Court on the other hand, clearly reflects that the respondent-workman, during the course of his examination, asserted that he had worked for five years under the petitioner, but the same was not even contradicted by the petitioner in the cross-examination. It was for the petitioner to prove by way of cogent and acceptable evidence that the respondent-workman was not engaged for 240 days in a year to disentitle him to the protection of Section 25-F of the Act of 1947. Having failed to discharge this burden, it is not open to the petitioner to claim that the respondent-workman was not engaged for the said period. In the light of the above facts and circumstances of the case, I do not find any lacuna or defect in the Award under challenge, warranting the exercise of Certiorari jurisdiction by this Court. It is further stated that the respondent-workman has been reinstated in service in the year 2005. The Award in I.D.No.296 of 1995 of the Labour Court is therefore upheld. The Writ Petition is found to be devoid of merit and is accordingly dismissed. The respondent-workman is consequently entitled to withdraw the amount directed to be placed in a fixed deposit under the order of this Court dated 22.01.1999. There shall be no order as to costs. -------------------------- SANJAY KUMAR,J 25th JUNE, 2009 PGS THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.879 OF 1999 25th JUNE, 2009