THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT APPEAL NOs.703, 738, 707 OF 2011 COMMON ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) These three writ appeals can be dealt with together as they arise from out of a common Judgment rendered by a learned single Judge on 17.02.2011. The writ petitioners are appellants before us. 2. The respondent/workmen were engaged on nominal muster roll basis. It is their claim that, they were engaged on 01.08.1987 and continuously worked as such for more than four years and they were abruptly terminated on 28.02.2003. Challenging their oral termination, the workman invoked the jurisdiction of the Labour Court in terms of Section 2-A (2) of the Industrial Disputes Act, 1947 (henceforth referred to as ‘Act’), complaining that, their oral termination is contrary to the provisions contained in Section 25-F of the Act. 3. After an elaborate consideration, the Labour Court passed an award for reinstatement of the workman with 25% back wages at the same rate he was paid, from the date of his termination i.e. 28.02.2003 till the date of award. The awards thus passed in favour of the workmen by the Labour Court were challenged in the writ petitions preferred by the appellants herein. The learned single Judge confirmed the award and dismissed the writ petitions. 4. It is contended by the learned counsel for the appellants that, both the Labour Court and the learned single Judge have erred in their finding that the workmen concerned have put in continuous service prior to their termination and hence are entitled for the protection under Section 25-F of the Act. Learned counsel for the appellants would contend that, workmen were engaged on nominal muster roll basis as plantation workers and that the plantation work is a purely seasonal work and as soon as the season is over, the workmen will automatically seize to perform any duties and hence the question of the workmen rendering continuous service for more than four years is neither here nor there. It is also contended that, contrary to the principles enunciated by the Supreme Court in M/s ESSEN DEINKI VS RAJIV KUMAR[1], the learned single Judge has affirmed the award passed by the Labour Court. 5. The workman has examined himself as W.W.1 before the Labour Court and also marked several documents. On behalf of the appellants herein, Sri C.G. Swamy Das, Deputy Conservator of Forests has been examined as MW.1. The Labour Court has also marked Ex.X.1, a letter issued to the Divisional Forest Officer by the Superintendent, Asifnagar, Water Supply Division II. To bring home the fact that, he was working continuously since the date of his engagement, the respondent/workman has got marked a copy of the order passed by the Andhra Pradesh Administrative Tribunal in O.A.No.1222 of 2001 instituted by him seeking regularization of his services, the appellants as Ex.W.6. He has also placed reliance upon copy of the order passed by the Labour Court in MP.No.3 of 1993 dated 29.07.2002 with regard to the payment of overtime wages, marked as Ex.W-7. This apart, a representation was filed by the writ petitioner immediately after his termination on 03.03.2003 was got marked as Ex.W.1. From a perusal of Exs.W.6 and W.7, it would be clear that, the workman has been agitating for regularization of his services. The appellants, when they are confronted by the orders of the Andhra Pradesh Administrative Tribunal rendered in O.A.No.1222 of 2001, avoided making any reference whatsoever to it. The defense averred by the appellants that the conditions prescribed by the State Government through their G.O.Ms.No.212 GAD dated 22.04.1994 are not satisfied and hence regularization of the services of the workmen was not permissible, in our opinion, is not an answer to the assertion of the appellants with regard to the continuous service rendered by the workman concerned. This apart, the earlier order passed by the Labour Court in MP.3 of 1993 which is marked as Ex.W.7 dealt with the issue of payment of overtime wages to the workman concerned. That also lent support to the claim of the workman that he has continuously worked from the time of his initial engagement. The fact that the workman has represented protesting his termination on 28.02.2003 by submitting a detailed representation on 03.03.2003 was not even denied. Therefore, the Labour court has rightly come to the conclusion that the workman concerned has rendered continuous service. If a workman has rendered continuous service of one year, termination of his services without following the procedure prescribed under Section 25-F of the Industrial Disputes Act, 1947, amounts to retrenchment. Therefore, the Labour Court rightly granted the relief of reinstatement to the workman by its award dated 09.03.2006. 6. The Labour Court has also carefully balanced the interests of the appellants herein vis-à-vis the claims of the respective workmen by confining payment of back wages to the limited extent of 25% at the same rate of remuneration prevailing at the time of his termination namely on 28.02.2003 till the date of award only i.e. till 09.03.2006. In our opinion, learned single Judge has rightly affirmed the said award as the appellants herein have not discharged the burden of disproving that the respondent/workmen have not continuously worked with them and that their termination is not contrary to Section 25-F of the Act. We therefore do not find any infirmity in the order passed by the learned single Judge. 7. The principle enunciated by the Supreme Court in M/s ESSEN DENKI VS. RAJIV KUMAR was that, it is for the workman concerned to prove that he has worked for 240 days in the last preceding 12 months period prior to his termination. If the workman has failed to discharge this initial burden, then it is not needed for the employer to establish that the workman concerned has not worked for 240 days continuously in the preceding 12 months period prior to his termination. As was already noticed by us supra, the initial burden with regard to continuous service put in by the workman has been discharged by the workman by producing documentary evidence such as Exs.W-1, W-6 and W-7. It is the appellant, who has failed to discharge the burden to disprove the factum that the respondent/workman has not put in 240 working days within 12 months period immediately preceding the date of termination. Therefore, the Judgment of the Supreme Court in M/s ESSEN DENKI VS. RAJIV KUMAR is of no avail to the appellants. 8. We do not find any merit in these writ appeals and they are accordingly dismissed. Two months time is granted for purposes of calculation and effecting payment of 25% of wages awarded by the Labour Court for the period between 01.03.2003 up to 09.03.2006 from the date of receipt of this order. No costs. __________________________ GHULAM MOHAMMED, J ________________________________ NOOTY RAMAMOHANA RAO, J 29th November 2011 sp [1] 2002 (7) Supreme 393