THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.28631 of 1995 Dated:07.02.2008 Between: General Manager (Engg), Water Supply & Sewerage Maintenance, Division No.1, Mir Alam at Partep Bagh, Gosha Mahal, Hyderabad, and another. .. Petitioners. and Mohd. Asif and another. .. Respondents. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.28631 of 1995 ORDER: Heard Smt. M.Venkateshwari, learned Standing Counsel for the petitioner-Board. None appears on behalf of the respondents. 2. This writ petition is filed aggrieved by the award of the Industrial Tribunal in ID.No.13 of 1995, dated 24.08.1995. 3. The State Government, vide G.O.Rt.No.213, dated 07.02.1995, referred the following dispute for adjudication to the Industrial Tribunal:- “Whether the management of Hyderabad Metropolitan Water Supply and Sewerage Board is justified in not reinstating Mr.Mohd. Asif, NMR., even as per their memo No.1019, dt:18.09.1993 and conciliation Proceedings dated:08.10.1993.” 4. The first respondent-workman filed his claim statement and the petitioners herein their counter affidavit. While the first respondent examined himself as W.W.1 and marked W.1 to W.12 as exhibits, the petitioners herein examined one Sri M.G.Ramchander as M.W.1. The proceedings dated 18.09.1993 is a memo issued by the General Manager of the Board to the first respondent-workman informing him that a lenient view had been taken and that he would be reinstated as N.M.R., if he gave in writing that (1) he would withdraw his case in the Labour Court (2) he would not claim wages for the period of absence(3) he would not be absent from duty in future. Again before the Conciliation Officer i.e., Assistant Commissioner of Labour, Ranga Reddy District, on 08.10.1993, one Sri V.Ramaswamy, who was then the Divisional Accounts Officer of the Board, and the President of the Union, of which the first respondent was a member, appeared. The proceedings of the Assistant Commissioner of Labour (Conciliation Officer), dated 08.10.1993, records that the President had stated that as per the memo, dated 18.09.1993, they were agreeable not to claim back wages in respect of the first respondent and that he would not unauthorisedly abstain from duty in future. The Divisional Accounts Officer is also said to have agreed to the above. Consequent thereto, while it is the case of the first respondent that, when he reported to duty, the petitioner did not permit him to join duty. Petitioner would state that not taking the first respondent back to duty was in view of the bar in Act 2 of 1994 whereunder no N.M.R. could be appointed. 5. The Industrial Tribunal, on an analysis of the evidence on record, observed that the petitioners herein, having given an undertaking voluntarily in the first instance, and consequently at the behest of the Assistant Commissioner of Labour, were not entitled to turn around and contend that Act 2 of 1994 came in the way. The Industrial Tribunal held that the workman did not seem to be vigilant and that he had approached the department after a gap of two years. However it held that, since the petitioner had offered to reinstate the workman on 18.09.1993 and had again agreed thereto before the Assistant Commissioner of Labour, they were not entitled to turn around and contend that the workman could not be reinstated, on the ground that the ordinance came in the way. The Industrial Tribunal held that it was not a case of fresh appointment but was a case of reinstatement and, as such, the petitioners herein could not resile from their earlier statements and refuse to reinstate the first respondent-workman merely on the ground that Act 2 of 1994 was a bar. The Industrial Tribunal rejected the petitioners’ contention that Act 2 of 1994 was a bar, and held that any undertaking given before the Conciliation Officer could not be contrary to the provisions of the Act. 6. As observed by the Industrial Tribunal, Act 2 of 1994 relates only to fresh appointments and not to cases where an N.M.R. workman is being reinstated into service and as the first respondent was required to be reinstated into service, Act 2 of 1994 would not come in the way. As has been admitted by the first respondent in cross-examination, in no year had the first respondent-workman completed 240 days of service. For an employee to claim reinstatement, the employer must have acted contrary to Section 25-F of the Industrial Tribunal Act (for short, ‘the Ac’). Section 25-F of the Act would apply only in cases where a workman has put in more than 240 days of service in the 12 month period preceding his termination. From the evidence on record, it is clear that the first respondent-workman has not completed 240 days of service even during the four years period commencing from July, 1987 to June, 1991, much less 240 days of service in the 12 month period preceding his earlier termination. In the absence of the first respondent-workman fulfilling this requirement of having put in 240 days of service in the 12 month period preceding his termination, he was not entitled for protection under Section 25-F of the Act and, as such, could not have claimed reinstatement. At best, it was a case of appointment as an N.M.R and not a case of reinstatement and, in view of the bar under Act 2 of 1994, the contention of the petitioners that services of N.M.R. cannot be engaged cannot be said to be without merit. The finding of the Industrial Tribunal that the first respondent is required to be reinstated into service, and not appointed afresh, is a finding which is perverse and is not based on any evidence on record. Since the award suffers from a patent error apparent on the face of the record, it is liable to be quashed under Article 226 of the Constitution of India, and is, accordingly, quashed. 7. The writ petition is allowed. However, in the circumstances, without any costs. ______________________ RAMESH RANGANATHAN,J Dt.07.02.2008 v v