IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 16777 of 1997 Between: The Managing Director, Lokesh Machines Ltd., Employees Union, 4-112, H.N.S.Office, Balanagar, Hyderabad. Bontapally, Medak District. ..... PETITIONER AND 1 Sri. K.L.N. Chary, Through the General Secretary, Lokesh Machines Ltd., Employees Union,4-112, H.N.S.Office , Balanagar, Hyderabad. 2 Presiding Officer,the Industrial Tribunal-I, at Hyderabad. ..RESPONDENTS Counsel for the Petitioner:MR.A.K.JAYAPRAKASH RAO Counsel for respondent No.1: MR V.HARI HARAN Counsel for respondent No.2: None appeared. The Court made the following : O R D E R: This writ petition is filed for a writ of Certiorari to quash award dated 04-02-1997 passed in I.D.No.75 of 1994 on the file of respondent No.2. Heard Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, and Sri V.Hari Haran, learned counsel for respondent No.1. The petitioner is the employer. Respondent No.1 and 13 others were workmen of the petitioner. The retrenchment of respondent No.1 and others was questioned by way of an industrial dispute raised by the Union of the workmen, which was referred to respondent No.2 under Section 10(1) (d) of the Industrial Disputes Act, 1947 (for short “the Act”). The only ground on which the retrenchment was questioned was violation of Rule 79 of the Andhra Pradesh Industrial Disputes Rules, 1958 (for short “the Rules”). Respondent No.2, in its award, on the basis of the evidence placed before it, gave a finding that the petitioner displayed the list of all workmen whose retrenchment was contemplated as envisaged in Rule 79 of the Rules only on the date of retrenchment and thereby it failed to follow the said Rule under which the employer shall display the list for a period of at least seven days before the proposed date of retrenchment. Respondent No.2, however, treated the said Rule as not mandatory and a gave a specific finding that failure to follow the procedure prescribed in the said Rule has not caused any prejudice to the workmen. Respondent No.2, however, further went into the issue whether the provisions of Section 25-F of the Act were followed in the case of respondent No.1 and held that as the management failed to place on record payment of retrenchment compensation for the entire service rendered by respondent No.1, as envisaged in Section 25-F (b) of the Act, it declared the retrenchment of respondent No.1 as illegal and directed his reinstatement with full back wages and other benefits with continuity of service. The learned counsel for the petitioner contended that non- payment of retrenchment compensation was neither raised in the claim statement made by the Union nor respondent No.1, who examined himself as W.W.3, made a whisper about the same. The learned counsel relied on the judgment of the Supreme Court in Shankar Chakravarti v. Britannia Biscuit Co. Ltd and another[1], in support of his contention that the initial burden of pleading and proving that the retrenchment is illegal and contrary to the provisions of the Act is on the workman and that the Labour Court/Tribunal cannot declare the retrenchment as illegal in the absence of any such pleading and proof. Sri V.Hari Haran, learned counsel appearing for respondent No.1, however, submitted that since non-payment of retrenchment compensation vitiates the retrenchment itself, respondent No.2 had every jurisdiction to invalidate the retrenchment for failure to follow the mandatory provision contained in Section 25-F (b) of the Act. He relied on a Division Bench judgment of the Rajasthan High Court in Rajasthan State Road Transport Corporation vs. Sohan Lal and another[2]. I have carefully considered the respective submissions of the learned counsel for the parties. It may be noted that the learned counsel for respondent No.1 fairly admitted that the Union has not raised the issue of non-payment or inadequate payment of retrenchment compensation. I have carefully perused the evidence of respondent No.1, who examined himself as W.W.3. In his chief examination, he did not refer to the said issue at all. In his cross-examination, he stated “I agree that I refused to receive the retrenchment compensation when tendered in person and by money order. It is not correct to say that no retrenched workman was taken back and no fresh appointment was made.” Respondent No.2, in its award, embarked upon the issue of non-payment of retrenchment compensation for the period from 1988-91. In this connection it observed ”both the parties are sailing in the same boat. The petitioners did not put forward any specific version for what reason they are assailing the retrenchment either in the claim statement or in the evidence. Though they claimed violation of Chapter V-B in the application to the Conciliation Officer, it is not pursued in evidence. It is not elicited either in the evidence of W.W.1 and M.W.3 or in the evidence of the management’s witness about the length of service, the wages and the amount payable to such workmen to satisfy Section 25-F of the Industrial Disputes Act, 1947.” Having held as above, the Tribunal suddenly jumped to the conclusion that the petitioner committed violation of Section 25-F (b) of the Act insofar as respondent No.1 is concerned as his service from 1988-91 was not taken into consideration. I am of the considered opinion that respondent No.2 committed a serious jurisdictional error in dealing with the issue as to whether the provisions of Section 25-F of the Act were violated by the petitioner in retrenching respondent No.1. As noted above, such a ground was never raised either in the claim statement or in the oral evidence of respondent No.1. Far from raising such a plea, respondent No.1 categorically admitted that when retrenchment compensation was sought to be paid to him, he refused to receive the same. As held by the Supreme Court in Shankar Chakravarti v. Britannia Biscuit Co. Ltd and another[3] (1 supra), the initial burden is on the workman to plead the grounds on which the retrenchment is invalid and produce material in support of the same. In this context, it is apt to refer to para 31 of the judgment hereunder- “If such be duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must take a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead the evidence. The quasi-judicial tribunal is not required to advice the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by the party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Pvt.) Ltd. v. Industrial Tribunal 2 Lab LJ 667 at p. 680 (Punj), commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question to proving something which is not pleaded. This is very elementary.” The award passed by respondent No.2 in the instant case clearly falls foul of the dicta laid down by the Supreme Court in the above mentioned judgment. As regards the judgment of the Rajasthan High Court in Rajasthan State Road Transport Corporation vs. Sohan Lal and another (2 supra), I have carefully considered the same and I am of the view that the facts in the said case are totally different and distinct and they do not bear any similarity to the facts of the present case. Hence, the said judgment is of no help to respondent No.1. For the above mentioned reasons, the writ petition is allowed. The impugned award is quashed. C.V.NAGARJUNA REDDY, J Dated 18th November, 2008 vrn [1] AIR 1979 Supreme Court 1652 [2] 1996 LLR 930 [3] AIR 1979 Supreme Court 1652