IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH, AT HYDERABAD THE HON’BLE SRI JUSTICE A. GOPAL REDDY WRIT PETITION No. 27058 OF 1995 Date:14.03.2007 BETWEEN: 1. The Executive Engineer, and another …. PETITIONERS And 1. S. Pochaiah, S/o. Ramaiah, C/o. Y.Subhash, President, A.P. Government Karyanirvoteeka Workers Union, D.No.13-4-116, Tappa Chabutra, P.O. Kulsumpura, Hyderabad, and another. …. RESPONDENTS ORAL ORDER: The Executive Engineer and the Deputy Executive Engineer Panchayat Raj Department, Bodhan, are the petitioners in this writ petition. They filed the writ petition to issue a writ of certiorari calling for records from the Presiding Officer, Labour Court-II Hyderabad relating to award in I.D.No.672 of 1992, dated 13.7.1995 as published in G.O.Rt.No.2009, dated 30.08.1995 and to quash the same. The first respondent raised an industrial dispute under sub- section (2) of Section 2 of the Industrial Disputes Act, 1947 (for short ‘the Act’) for setting aside the removal order and for reinstatement on the ground that he worked as Gangman continuously till February, 1988 and the Deputy Executive Engineer, the second respondent in I.D., orally removed him from the service as he prayed for his monthly salary for the months of April, 1985 to July, 1985. Hence, he moved for conciliation before the Assistant Commissioner of Labour, Nizamabad, before whom the second respondent conceded and reinstated the petitioner with effect from 1.03.1986 by making the seniors to the petitioners, namely, Smt. Rajabai, Sri Bhoi Sangaiah, Sri Narsimulu, Smt. Sayavva, Sri Peda Pochaiah, Sri Sidana, Sri Y. Nadial Gangaram and Sri M.D. Sheriff, gangmen, permanent. It is his case that without issuing any notice and without paying any compensation, he has been retrenched from the services, which is unjust and contrary to the procedure contemplated under the Act. The respondents therein filed counter affidavit stating that the petitioner was engaged as casual labour on payment of daily wages whenever necessity arose during 7/84 to 11/87. It was also stated that 7/84 to 6/85, the workman was paid wages for 24 days in a month at Rs.10/- per day and 7/86 to 11/86 he was paid wages for 24 days in month at Rs.12-50 per day, and he was not engaged as per G.O.Ms.No.287, dated 07.09.1987 as casual labour from 12/87. It was also stated that the workman was not appointed in any time scale and he was only a casual labour on daily wage basis and whenever necessity arises. It was further contended that the application filed before the Assistant Commissioner of Labour, Nizamabad for not engaging him continuously was withdrew by the petitioner himself informing that he was engaged from 11/86 to 11/87 for 15 days in a month and he was paid wages. In view of the ban for appointment of casual labours, the question of continuously engaging the petitioner does not arise. The Labour Court without adverting to the facts raised in the counter gave a finding that the workman established that he has worked for more than 240 days in a year, but the management has failed to produce the records to establish that the workman has not engaged continuously. When Exs.W.1, to W.4 proceedings goes to show that the workman appealed to the Assistant Commissioner Labour and since the management promised to provide a night watchman post, the said application has been withdrawn by the workman in the year 1986. There was no contra evidence that the workman has not worked for more than 240 days and that no retrenchment notice was given and no compensation was paid. When the workman worked for more than 240 days his services cannot be terminated without giving any notice and without paying any compensation. Observing so the labour Court passed award directing the management to reinstate the petitioner as NMR as per Rules, but without any back wages. Learned Government Pleader contends that it is for the workman to establish that he worked for more than 240 days continuously as per Sections 24 and 25(n) of the Act, and that 240 days of continuous service does not by itself give an opportunity to him, and any direction issued for compliance to restore the workman to the old status, which he was holding in his service before termination, would be contrary to the Rules made thereunder. In support of his submission he placed reliance upon the judgment of the Supreme Court in Manager, Reserve Bank of India v. S. Mani[1]. Learned Counsel for the respondent/workman contends that when the workman pleaded that he worked for more than 240 days and in the absence of any contra evidence let in by the Management, it was presumed that the workman worked 240 days and the finding of fact so arrived at by the Labour Court cannot be interfered with by the High Court. In support of his contention he placed reliance on a judgment of this Court in Haryana Financial Corporation v. Presiding Officer, Labour Court-cum-Industrial Tribunal and another[2]. It is not in dispute that it is for the workman to establish before the Labour Court that he has worked for more than 240 days and eligible to claim the benefits under the Act, and that he cannot be retrenched without paying retrenchment compensation as per the procedure contemplated under the Act. If the management has not produced the wage register it is for him to summon for the wage register and other documents, which were in possession of the management to establish that he has worked for more than 240 days. The counter filed by the management stating that the workman was engaged for 24 days in a month for the periods from 7/84 to 6/85, 7/86 to 11/86 and for 15 days in a month from 12/86 to 11/87, would go to show that he has not completed 240 days in a year and in the absence of any rebuttal to the counter filed by the management, equally a presumption can also be drawn against the workman. In view of the same, the finding recorded by the labour Court that the workman worked for more than 240 days and his services are terminated without giving any notice or without payment of any retrenchment compensation, is a bald finding and without basing on any evidence. In view of the same, the impugned order passed by the lower Court is set aside and the matter is remitted to the lower Court to decide the matter afresh, after giving an opportunity to both the parties. The Labour Court is directed to dispose of the matter within a period of four months from the date of receipt of a copy of this order. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. __________________ (A. Gopal Reddy, J.) 14th March, 2007 Js. [1] (2005) 5 SCC 100 [2] 2005 (2) LLJ 572