THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 15470 of 1998 ORDER: This writ petition is directed against the award dated 24.3.1998 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in ID No. 192 of 1993, raised by the 3rd respondent – workman. The case of the 3rd respondent – workman was that he joined the service of the writ petitioner – firm which is an authorized dealer for Mahindra Brand tractors and spare parts on 4.7.1988. He was in continuous employment of the firm till 5.1.1993 when he has been stopped unjustly from service. He therefore took up the matter with the Assistant Labour Officer, Srikakulam, First Circle, whose intervention did not help him get reinstated. He therefore raised the industrial dispute calling in question his illegal termination, which amounted to retrenchment. It is his case that no notice was issued before his services are being terminated and he has not been paid wages in lieu of any such notice and nor was he paid the retrenchment compensation in accordance with the provisions of the Industrial Disputes Act. The workman has asserted that he was paid a sum of Rs.1200/- per month. The writ petitioner has resisted the claim. It was stated that the writ petitioner was an authorized dealer of Mahindra tractors. But, however, he was carrying on the said activity in Killipalem Panchayat limits which was covered by the provisions of the A.P.Shops and Establishments Act, 1988 only with effect from 1.11.1992 through a notification issued in that respect. It is contended that the respondent – workman had abandoned his employment voluntarily in August 1991 itself and that he was paid his wages up to that point of time and hence the industrial dispute is not liable to be entertained. It was further contended that there were no arrears of wages liable to be paid to the respondent – workman and after he left the employment of the writ petitioner, he joined the service of another rival organization and hence, was gainfully employed. That was the reason why he has abandoned the employment of the writ petitioner on his own. Hence the question of complying with the provisions of the Industrial Disputes Act does not arise. The workman has examined himself as WW1 before the Labour Court. He has also got exhibited three documents Exs. W1, W2 and W3. Ex.W1 is a copy of the appointment order issued by the petitioner firm on 4.7.1988 appointing him. Ex.W2 is copy of a complaint lodged by the workman on 23.1.1993 before the Assistant Labour Officer - Srikakulam – First Circle and the response furnished by the petitioner thereto on 15.3.1993 to the Assistant Labour Officer. Ex.W3 is the proceeding dated 22.3.1993 of the said Assistant Labour Officer. The Managing Partner of the petitioner firm was examined as MW1. Another individual was also examined as a representative of the petitioner firm as MW2. Four documents were exhibited. Ex.M1 is the attendance register for the period from January 1992 to December 1992. Ex.M2 was the attendance register for the period January 1991 to December 1991. Ex.M3 is the wage register for the period from September 1991 to September 1992. Ex.M4 was the wage register for the period from September 1990 to August 1991. On behalf of the Management, two documents have been got summoned and they have been marked as Exs.X1 and X2. Ex.X1 is a letter addressed by Aruna Auto & Farm Mechanisation, Srikakulam. On 22.7.1997. Ex.X2 is a job card issued by the said Sri Rama Auto Service. The Labour Court after assessing the evidence on record had arrived at a finding that it would be difficult to believe that the workman has abandoned the employment all on his own in August 1991. Though detailed reasons are not assigned by the Labour Court for rejecting the theory set up by the Management, of voluntary abandonment of employment by the workman in August 1991 itself, but, nonetheless the material produced by way of Exs.M3 and M4 on behalf of the petitioner firm would disclose as to how the said claim made in this respect is hollow. Ex.M4 is the wage register commencing from the period of September 1990. The respondent – claimant’s name was shown at Sl.No.2 in the said wage register where totally six names were shown. The 1st name therein is that of one Sri G.Murali. His designation is shown as Manager. He was paid Rs.1100/-. The 2nd name is that of the workman I.Satya Rao. His designation was shown as Sales Executive. He was shown as paid Rs.1000/-. The 3rd name is M.Prasada Rao. His designation was shown as Representation and he was also paid Rs.1000/-. Wages for the month of August 1991 were paid on 5.9.1991. The respondent – workman I.Satya Rao received his wages for the month of August 1991 in a sum of Rs.1000/- on 5.9.1991 and he has also signed across the revenue stamp affixed in the relevant column No.25 of the wage register evidencing receipt of wages by him on 5.9.1991 for the month of August 19991. When Ex.M3 is perused which is the wage register for the period from September 1991 upto September 1992, the name of the 3rd respondent – workman was included at Sl.No.2 of the list of employees, immediately below that of Sri G.Murali and above that of M.Prasada Rao. He was shown as liable to be paid Rs.1000/-. In column No.26 and 27 which relate to the date of payment of wages and the notice of payment of wages, the dates are noted as 5.10.1991 and 4.10.1991 respectively. Similarly, for the month of October 1991, the name of the 3rd respondent – workman was continued to be shown at Sl.No.2 immediately below that of G.Murali and above that of M.Prasada Rao, for the month of November 1991 and December 1991, similar entries were found therein. At page 53 of the wage register, Ex.M3, name of the 3rd respondent – workman was figuring at Sl.No.2, for the month of December 1991 and in columns 26 and 27, the dates noted are 5.1.1992 and 4.1.1992. In column No.24, the amount liable to be paid was shown as Rs.1000/- against the name of the 3rd respondent – workman and excepting him, all others have signed across the revenue stamp affixed in the said register in token of receipt of their wages. The signature of the 3rd respondent – workman was the only one conspicuously absent there. Thus, Ex.M3 clearly establishes that the respondent – workman has not abandoned his employment in August 1991 as claimed by the petitioner herein. If that be the case, as on 5.1.1992, when the wage register for the month of December 1991 was prepared, his name would not have been shown in the said register and in column No.24, the amount of wages payable to him viz., Rs.1000/- would not have been shown. If the workman has abandoned his employment and he has not rendered any service, the employer would not have asked the wage register to be prepared indicating the wages payable to him as Rs.1000/- for the said month. This apart, we have already noticed that on 5.9.1991, the workman has received his wages of Rs.1000/- for the month of August 1991 as evidenced by Ex.M4. Hence, the claim set up by the petitioner herein that the workman has abandoned the employment is incorrect. Then in such an event, the finding recorded by the Labour Court on point No.1 is clearly sustainable. While dealing with point No.2, the Labour Court recorded a finding that the termination of the service of the workman amounts to retrenchment and that the retrenchment compensation payable in accordance with Section 25F of the Industrial Disputes Act has not been paid to him and hence such a retrenchment is not sustainable under law. There appears to be some confusion in the mind of the writ petitioner. The Labour Court never quoted Section 25(P) of the Industrial Disputes Act at all. The finding recorded by the Labour Court clearly is with regard to violation of Section 25F of the Industrial Disputes Act. In view of the controversy raised at the Bar in this regard, I have summoned and perused the original award signed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Visakhapatnam. At page (3) in paragraph (7) of the award clearly Section 25F of the Industrial Disputes Act has been mentioned, but not Section 25(P). The writ petitioner has also raised a contention that the respondent-workman was gainfully employed after he abandoned the employment with the petitioner. In support of his contention, he got Exs.X1 and X2 marked. Ex.X1 is dated 22.7.1997 which is in the form of a complaint by Aruna Auto & Farm Mechanisation, addressed to the Manager, Aruna Auto Service, Authorized dealer for MICO Pumps, Visakhapatnam. From this document, it was obviously sought to be shown that the respondent – workman signed the said letter for and on behalf of Sri M.V.S.Ramachandra Murthy, Proprietor of the said firm. Ex.X2 is a job card bearing No. 703 with regard to a tractor sold to Sri Kumar Raja of Belagam, Parvathipuram by the afore mentioned firm. Obviously that does not bear even the signature of the workman. Therefore, very rightly the Labour Court has not taken them into account consideration. I have also perused the deposition of the workman, who was examined before the Labour Court on 24.10.1997. It is no doubt true that he claimed that he was getting the monthly emoluments in a sum of Rs.1200/- in the course of his deposition and he has also denied that he was receiving only Rs.1000/- per month. However, in view of the material produced by way of Exs.M1 to M4, the respondent – workman was receiving at the relevant point of time wages Rs.1000/- only but not Rs.1200/-. He has signed the wage register periodically across a revenue stamp affixed therein acknowledging receipt of wages of Rs.1000/-. Therefore, the claim of the workman that he was drawing Rs.1200/- per month is untenable. He has denied specifically that he was working in Aruna Auto Firm since January 1992. He has not been confronted by Exs.X1 or X2. It is therefore improper to rely upon such documents, which have not been put to the respondent – workman. However, it will be relevant to notice that Ex.W1 is a copy of appointment letter issued by the petitioner, which is produced by the respondent – workman. It clearly contained the name of the petitioner herein and that of the respondent – workman, his father’s name and his age was recorded as 49 years and against the column for the date of birth it was clearly recorded as 29.11.1939. Therefore by the time the Labour Court examined the entire matter, the respondent – workman has not attained the age of 60 years as claimed by the petitioner herein. The award passed by the Labour Court can be sustained as it had adopted a rational approach in the matter, though for the reasons set out supra. However, the only error, if one can call that, as such, committed by it was in not framing any issue as to whether the petitioner, a partnership firm would have answered the description of an industry in terms of Section 2(s) of the Industrial Disputes Act. If the establishment of the petitioner – partnership firm is covered by the A.P. Shops and Establishments Act, as admitted by the petitioner himself before the Labour Court that it has been covered with effect from 1.11.1992, in the following words in paragraph (2) of his rejoinder before the Labour Court : “…. The business of respondent is covered under the said Act of 1988 with effect from ….….” Then the question as to whether it is an industry or not ought to have been examined. If it is a fact that the opposite party is an authorized dealer and doing its business at N.H. Road, Srikakulam which is in Killipalem Panchayat limits and as such the business is not covered under the provisions of A.P. Shops and Establishment Act, 1988 till 1.11.1992 and by which time the claimant was not a workman the respondent could not invoke the provisions of the Industrial Disputes Act straight away. Then the Labour Court ought to have examined whether the workman before it should have first invoked the provisions of Section 48(1) of the A.P. Shops and Establishment Act, 1988, complaining of violation of the procedure and conditions precedent for his termination set out under Section 47 before he approached the Industrial Tribunal, which has been conferred power of an appellate authority under Section 48(3). For its failure to examine this question, to my mind, the award need not be set aside. Since both parties are also lax in not leading evidence in that respect, that issue perhaps can be omitted from consideration for the present. The Labour Court has finalized its award holding that the respondent – workman does not deserve to be reinstated back to the service of the petitioner. In such a case, it should have quantified the compensation that would become payable in lieu of such reinstatement instead of directing the petitioner herein to pay the workman backwages from 5.1.1993 till the date of the notification of the award, besides other retirement benefits he would have got on the basis of continuity of service till that time. As was already noticed supra, the Labour Court is not right in holding that the workman was drawing wages of Rs.1200/- per month. As was noticed supra from Exs.M1 to M4, he was only drawing Rs.1000/- per month. In such circumstances, wages for a period of five years in a lumpsum ought to have been awarded in lieu of reinstatement and other benefits. Since he was found drawing Rs.1000/- per month, he would have continued to draw Rs.12000/- per annum and total wages for five years would have worked out to Rs.60,000/-. Payment of wages in a lumpsum for a period of five years would have been a reasonable measure to compensate to the workman when his reinstatement cannot be ordered. Therefore, I modify the award passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in ID No. 192 of 1993 on 24.3.1998 by substituting payment of a total compensation amount of Rs.50,000/- as full and final settlement of all rights and entitlement of the 3rd respondent – workman. While admitting this writ petition on 9.7.1998, the petitioner was directed to deposit half of the amount of backwages awarded by the Industrial Tribunal. When the 3rd respondent – workman moved a vacate application in WVMP No. 3714 of 1999, another order was passed on 3.12.1999 directing half of the amount deposited by the petitioner herein be withdrawn without furnishing security and the other half duly furnishing security, by the 3rd respondent-workman. Since the award passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in ID No. 192 of 1993 is now modified, the amount deposited and withdrawn by the workman shall be given credit to. The balance amount has to be deposited within a period of two months from the date of receipt of a copy of this order. Subject to what has been stated supra, the writ petition stands disposed of. No costs. -------------------------------- N.RAMAMOHANA RAO,J 10.12.2009 knk