HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 904 OF 2004 DATED 06TH NOVEMBER, 2009 BETWEEN Md. Razauddin ….Petitioner and The Hon’ble Labour Court-I, Hyderabad, rep. By its Presiding Officr, and anr …Respondents. HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 904 OF 2004 ORDER: The unsuccessful petitioner in I.D.No. 642 of 2000 on the file of the Labour Court-1, Hyderabad, is before this Court by way of this Writ Petition, seeking a declaration that the Nil Award dated 15.10.2003 passed therein is illegal; and a consequential direction to reinstate him in service with continuity of service, attendant benefits and back wages. The case of the petitioner before the Labour Court was that he was appointed as a Cleaner in the Andhra Pradesh State Road Transport Corporation (for brevity, ‘the APSRTC’) in the month of January, 1991 and that he was initially paid Rs.750/- per month. He claimed that he was terminated from service in the month of December, 1993 without notice. He claimed to have worked continuously without break in service for three years. His grievance was that his services were terminated in violation of Section 25-F of the Industrial Disputes Act, 1947 (for brevity, ’the Act of 1947’). Accordingly, he raised a dispute under Section 2-A(2) of the Act of 1947 to set aside the oral termination dated 5.12.1993 and to direct the APSRTC to reinstate him in service with continuity of service and other consequential attendant benefits. In its counter, the APSRTC stated that the petitioner was engaged on a piecemeal rate basis for washing and sweeping the buses in the month of June, 1992 and that the petitioner had engaged some other persons to perform the washing and sweeping of the buses on daily wage basis. Ex.M.3 was filed by the APSRTC in evidence of the payment of a sum of Rs.1880/- as remuneration, on the basis of number of vehicles washed and swept per day during the month of June 1992. The APSRTC further stated that the petitioner was not an employee of the Corporation having worked under a contractor and as such, there was no employer-employee relationship existing between the parties. Stating so, the APSRTC asserted that the question of terminating the services of the petitioner without following the procedure laid down by Section 25-F of the Act of 1947, did not arise. The Labour Court held that in the absence of evidence to prove that the petitioner’s services were engaged through a contractor, an assumption would arise that he rendered service directly under the APSRTC and therefore, it must be deemed that there was a relationship of employer-employee between the petitioner and the APSRTC. Having stated so, the Labour Court went on to consider as to whether the petitioner had worked for 240 days in a calendar year as required by Section 25-B(2)(a) of the Act of 1947 and held that he had failed to do so. The Labour Court held that the petitioner was not entitled to the reliefs claimed by him and accordingly dismissed the I.D. by the Nil Award dated 15.10.2003. Sri G.Ravi Mohan, learned Counsel for the petitioner, contended that the Labour Court misdirected itself in embarking upon an enquiry as to whether the petitioner had rendered 240 days of service, when there was no such plea or dispute raised by the APSRTC. Per contra, Sri K.MadhavaReddy, learned Standing Counsel for the APSRTC, asserted that the burden of proof was upon the workman to show that he had worked a minimum of 240 days in a calendar year, as required under Section 25-B(2)(a) of the Act of 1947, so as to bring into operation Section 25-F of the Act of 1947. He relied upon judgments of the Supreme Court in this regard. It is clear from the counter filed by the APSRTC before the Labour Court that no plea was raised that the petitioner did not render service of 240 days in a calendar year as required under Section 25-B(2)(a) of the Act of 1947. In the absence of such a pleading, there was no requirement for the petitioner to prove that he rendered 240 days service in a calendar year. It is to be noticed that, as laid down by the Supreme Court, the burden of proof would be upon the workman to show that he worked for 240 days in a calendar year when a dispute is raised in this regard by the employer. Unless such an issue is raised, there would be no occasion for the workman to discharge the burden of proof in this regard. In the present case, except stating that there was no employer-employee relationship between the parties, the APSRTC did not choose to raise a plea with regard to the petitioner failing to render the required 240 days of service in a calendar year. Therefore, there was no necessity for the petitioner to adduce evidence in this regard, as no onus was placed upon him to prove the same. In the absence of a pleading on the part of the APSRTC, in this regard it was not for the Labour Court to supplement the pleadings of the APSRTC, by raising and deciding the issue that the petitioner did not comply with the requirement under Section 25-B(2)(a) of the Act of 1947. It is relevant to notice that the petitioner entered in evidence, two gate passes of December, 1991 as Exhibits W1 and W2 while the APSRTC chose to place on record Ex.M3, a copy of the pay order dated 22.07.1992 evidencing the payment made to the petitioner. It is not possible on the basis of this material to determine the exact length of service rendered by the petitioner, as these documents do not, by themselves, indicate the commencement and completion of the petitioner’s service. Be that as it may, there are other contradictions in the stand taken by the APSRTC. On the one hand, the APSRTC stated that the petitioner was engaged by a contractor while on the other, it asserted that the petitioner himself was the contractor! In such circumstances, the benefit of doubt must invariably go in favour of the workman and not the management. As stated supra, the Labour Court exceeded its jurisdiction in supplementing the pleadings of the APSRTC by raising an issue which was not raised by the APSRTC itself. The issue as to whether the petitioner had worked for 240 days in a calendar year was not in dispute on the strength of the pleadings of the parties. Hence, the petitioner’s so called failure to establish this fact cannot be held against him. The other issue raised by Sri K.Madhava Reddy, learned counsel, is that there was an inordinate delay of seven years on the part of the petitioner in raising the Industrial Dispute. Trite to state, Article 137 of the Limitation Act, 1963, has no application to proceedings under the Act of 1947 as laid down by the Supreme Court in Ajaib Singh Vs. Sirhind Cooperative Marketing-cum- Processing Services Society Limited[1]. In such view of the matter, the delay, if any, on the part of the petitioner would not be sufficient reason to deny him relief in totality. Such delay would be taken into account for the purpose of moulding the relief. On a conspectus of the facts and circumstances of the case, I am of the view that the ends of justice would be sufficiently served by directing the APSRTC to appoint the petitioner-workman afresh in the same capacity that he worked in earlier. It is made clear that he is not entitled to any back wages, continuity of service or other attendant benefits as he has not rendered any service to the APSRTC during this long period and also keeping in mind, the delay of seven years on his part in seeking redressal of his grievance. In the result, the Writ Petition is allowed in part. There shall be no order as to costs: ------------------------------------ JUSTICE SANJAY KUMAR DATED 06TH NOVEMBER,2009. Msnr. [1] AIR 1999 SC 1351