THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.17283 of 1997 ORDER: This writ petition has been preferred by the Executive Engineer, (IB) Division, Karimnagar, calling in question the legality and validity of the award passed on 25-04-1997 in I.D.No.98 of 1994, which was raised by the 1st respondent-Workman. The case of the respondent-Workman is that he worked as a Work Inspector in I.B. Division of Irrigation Department at Karimnagar, in terms of the order passed on 02-04-1977. He worked continuously for more than one year. The workman alleges that he had fallen ill when he had gone to Hanamkonda from 01-06-1978 and he was bedridden for a considerable period of time and underwent treatment at Hanamkonda till he recovered. However, when he approached I.B. Division of Irrigation Department, it declined to entertain him to duty on the ground that his services are deemed to have been terminated by order, dated 20-03-1992, which was also communicated. Since the respondent workman alleges that he was in continuous employment in the Irrigation Department of the Government of A.P. in its IB division, termination of his services amounts to retrenchment as defined under Section 2 (oo) of the Industrial Disputes Act, 1947, and since the same has been brought about without complying with the conditions precedent spelt out under section 25-F of the Industrial Disputes Act, 1947, such a retrenchment is liable to be declared as illegal and consequently, he is entitled to be reinstated and he is also entitled to be awarded backwages. The said industrial dispute has been contested by the writ petitioner herein. It is pointed out that the workman was appointed as a Work Inspector and he has actually worked between 16-04- 1977 and 31-05-1978 with the intermittent gaps and his very appointment as Work Inspector was purely on temporary basis and the services of Work Inspector are urgently needed. It was made clear to him that his services are liable to be terminated at any time. Without obtaining any permission for leave of absence, the workman stayed way from duty from 01-06-1978 and he has traced himself out on 28- 02-1992 that was nearly 14 years later on. The workman has never bothered to intimate about his whereabouts or the reasons for his absence and more than 12 years after his voluntarily stopping from attending duties, he come forward seeking re-engagement in the service, since the same was not permissible and that fact was informed to him on 20-03-1992, even, thereafter, the 1st respondent- claimant raised the Industrial Dispute nearly two years later. The services of the respondent-workman have never been regularised and he has been engaged purely on temporary basis. As the services of the Work Inspector were urgently required, he has never worked continuously and, therefore, he is not entitled for any benefits. It was also contended that for his own voluntary act of abandoning employment, he cannot now seek reinstatement. Before the Labour Court, the Workman has examined himself as WW.1 and he examined one Mr.R.Sharath Kumar, a fellow employee as WW.2. He also marked nine documents. Of them, Ex.W- 9 is the order of the appointment issued by the Executive Engineer appointing the workman as Work Inspector. In response to a representation made by the respondent workman seeking re- engagement, the Executive Engineer issued the proceedings, dated 20-03-1992, intimating the respondent workman that his services stood terminated. Ex.W.1 is the said order, dated 20-03-1992. Ex.W-6 is the Service Certificate issued in the office of the Executive Engineer. Except these, rest of the documents are insignificant and will not have any direct bearing upon the controversy. In view of Ex.W- 9, there is no dispute whatsoever that the respondent workman was engaged as Work Inspector in the Irrigation Department of the Government of A.P. and in view of Ex.W.6, there is also no dispute that he did work upto 31-05-1978 and thereafter, even by the version of the workman, he himself stayed away as he suffered a set back in his health. However, since his services have been terminated without conducting any enquiry and without setting out any reasons thereof and without complying with the conditions precedent spelt out under Section 25-F of the Industrial Disputes Act, the termination has been brought about and hence he deserves to be reinstated. As was already noticed supra, the claim of the workman was resisted on the ground that he himself has absented from service and, therefore, for his own voluntarily abandoning service, his services have come to be terminated and hence, he is not entitled to be re- engaged at any time he pleases to report to the duty. The Labour Court has found that the respondent-workman had rendered more than 240 days of service in the 12 months period preceding 01-06-1978 and hence, the respondent-workman is entitled to be treated to have been retrenched and since the conditions precedent spelt out under Section 25-F of the Industrial Disputes Act, have not been complied with, his termination is invalid. Though it was sought to be brought out that the respondent-workman had in fact worked in Non-Formal Education Department from 15-02-1983 to 19- 12-1988 as an Instructor, and that he was also promoted as a Supervisor, he is not entitled to be reinstated. Significantly, the respondent-workman has admitted about his working in the Non- Formal Education Department as a Supervisor since five years. He has admitted that this fact has not been mentioned in his petition raising Industrial Dispute. He has also admitted that he has been paid Rs.450/- per month. However, he contended that he initially worked by receiving honorarium in terms of Rs.100/- only. Taking cumulative account of all these factors, the Labour Court passed an Award setting aside the order of termination, dated 20-03-1992, and directed reinstatement of the respondent-workman with continuity of service but without any back wages while treating the period of absence as loss of pay. Learned Assistant Government Pleader for Irrigation Department strenuously contended that the workman has stayed away on his own from duty from 01-06-1978. Therefore, he must be deemed to have abandoned his employment if he has not turned up for more than 14 years, which presupposes that he has no interest to work in the Department and that he was gainfully employed elsewhere. In fact, the respondent-workman has admitted that he was gainfully employed but he tried to come out of the said situation by making statement that he initially worked on adhoc basis by receiving Rs.100/- as honorarium and subsequently for the last five years, he was working as a Supervisor and receiving only Rs.450/- per month. When once the respondent-workman, according to the learned Assistant Government Pleader, has worked in another Department of the Government viz., Non-Formal Education Department, the question of either reinstating such a workmen or treating him to have continued in service of the Irrigation Department would not arise. The Labour Court has grossly erred in ordering reinstatement of the respondent-workman. Per contra, Sri S.M.Subhan, learned counsel representing the workman, submits that the question that has got to be answered by the Labour Court was whether the respondent before it is justified in terminating the services of the claimant-workman without following any procedure and without complying with the conditions precedent spelt out under Section 25-F of the Industrial Disputes Act, particularly when it is not in dispute that the workman had rendered more than 240 days of service. Learned counsel would also submit that notwithstanding the Award passed by the Labour Court, the workman has not been reinstated to duty nor was he paid any wages in terms of Section 17-B of the Industrial Disputes Act. He, therefore, submits that it is a fit case to dismiss and confirm the Award passed by the Labour Court. If the workman has rendered 240 days of continuous service, termination of services of such a workman for any reason whatsoever would amount to retrenchment so long as such termination has not been brought about by way of punishment or by voluntary retirement of the workman or retirement of the workman on attaining the age of superannuation or termination of the service of the workman as a result of the non-renewal of the contract of the employment or termination was brought about on the ground of continued ill-health. The crucial expressions under Section 2(oo) of the Industrial Disputes Act used are: “that the termination by the employer of the service of a workman for any reason whatsoever”. Therefore, the termination of services, if, is brought about for any reason other than those specified supra, then, it automatically amounts to retrenchment. This principle has been now set at rest by the Supreme Court by the judgment rendered in STATE BANK OF INDIA Vs. N.SUNDARAMONY[1]. Therefore, the termination brought about of the services of the workman herein even though reasons are attributable to himself, it would amount to retrenchment. If the services of the workman are to be retrenched, the conditions precedent spelt out under Section 25-F of the Industrial Disputes Act have got to be complied with. If they are not complied with, such retrenchment of workman is liable to be interfered with by the competent court. In view of the admitted factual position that the conditions precedent under Section 25-F of the Industrial Disputes Act have not been complied with by the writ petitioner herein, the termination of employment of the respondent-workman is liable to be treated as bad in law. However, the question ought to have engaged the attention of the Labour Court was whether the respondent-workman could have been ordered for re-instatement at all. The explanation offered by the respondent-workmen for not reporting to duty till 1992 and for not moving the Labour Court till 1994, is his continued ill-health. Whereas, during the course of cross- examination, the respondent-workman had admitted that he has been working as a Supervisor with the Non-formal Education Department for the past five years whereas the writ petitioner has asserted that workman was in fact working in the Non-Formal Education Department for a longer period than as mentioned by the Labour Court. It is, therefore, clear that the respondent-workman has been in employment of Non-Formal Education Department for a considerable period of time before he instituted or raising Industrial Dispute invoking the provisions under Section 2-A (2) of the Industrial Disputes Act. In these set of circumstances, the Labour Court instead of ordering for reinstatement, ought to have considered the option of awarding payment of compensation in lieu of such reinstatement. Ordering for reinstatement of the workman, who was already engaged in the service of another Department of the State Government, viz., non- formal Education Department, is not sustainable. The question, therefore, that falls for consideration is what would be the reasonable quantum of compensation that should have been awarded as compensation in lieu of reinstatement. At the relevant point of time, the workman was earning only Rs.305/- per month at the time when he was working, which worked out Rs.3,660/- per annum. Therefore, the Labour Court should have awarded a lumpsum amount as compensation keeping all the factors into consideration. I consider it appropriate to award an amount of Rs.50,000/- as an appropriate amount of compensation in lieu of reinstatement. I, therefore, consider it appropriate to allow this writ petition in part by modifying that portion of the Award, which ordered for reinstatement of the respondent-workman and instead substitute payment of lumpsum amount of Rs.50,000/- (Rupees fifty thousand only) as compensation in lieu of such reinstatement, as respondent- workman has not been justified in approaching the Labour Court nearly after more than 14 years. Accordingly, the writ petition is allowed in part. There shall be no order as to costs. Time for payment of compensation is three months from today. ______________________________ NOOTY RAMAMOHANA RAO, J Dated:20-11-2009 Prv [1] LLJ 1975 Part-I 453