HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.15716 of 1996 Between: The Executive Engineer, Priyadarshini Jural Project Dam Division, Mahabubnagar Dist. ..... PETITIONER AND Balamanyam and another. .....RESPONDENTS THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.15716 of 2002 ORDER: The award of the Industrial Tribunal-I, Hyderabad, in I.D.No.102 of 1999 dated 30.01.2001, is under challenge in this writ petition. The first respondent herein invoked the jurisdiction of the Industrial Tribunal, under Section 2A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’). In the claim statement filed before the Tribunal he stated that he was appointed as a man-mazdoor on 21.04.1998 on daily wage basis with the petitioner herein; he continuously worked there upto 20.12.1995 without any break; he, along with three others, had filed O.A.Nos.42860 to 42864 of 1991 before the Andhra Pradesh Administrative Tribunal seeking regularization of their services; the O.As. were finally disposed of directing the petitioner herein to verify whether the applicants were working and whether they satisfied the requirements of Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994 and, if they were otherwise eligible and suitable for such regularization, appropriate orders should be passed. The first respondent herein contended before the Tribunal that, on his representation to the petitioner to absorb him in a regular post, the petitioner, instead of considering his case for regularization, had disengaged his services with effect from 20.12.1995; no notice was issued to him before terminating his services; and, as he had worked for more than 240 days in a year, termination of his services without notice was in contravention of Section 25-F of the Act. Before the Industrial Tribunal the first respondent – workman examined himself as W.W.1 and marked Exs.W 1 to W.10. On behalf of the petitioner, while one witness was examined as M.W.1, no documentary evidence was let in. The Tribunal held that, since the first respondent-workman had deposed that he had worked for more than 240 day, and as no records were produced by the petitioner herein, an adverse inference had to be drawn against the petitioner herein for non- production of records and there was no reason to disbelieve the claim of the first respondent – workman. The Tribunal held that it was not even the case of the petitioner herein that the records were not available or that they were destroyed; and, in such circumstances, they ought to have produced the records to justify their contention that the first respondent – workman was a contractor and not an employee in its organization. The Tribunal also examined the question whether the first respondent – workman was entitled for regularization of his services or not; and, on an overall consideration of the factual and legal aspects, concluded that the first respondent had continuously worked as a workman; he was not only entitled to reinstatement into service but was also entitled to regularization in terms of G.O.Ms.No.212 dated 22.04.1994; but was not entitled for back wages on the principle of “no work no pay”. Learned Government Pleader for Irrigation would contend that, in view of the oral evidence of M.W.1 that the first respondent – workman was a contractor and not an employee, the Tribunal could neither have treated him as such nor could it have concluded that his disengagement was in violation of Section 25-F of the Act. It is not even the case of the petitioner herein before the Tribunal that the records, relating to the first respondent – workman’s engagement, were not available or that they had been destroyed. In such circumstances, the petitioner ought to have let in documentary evidence to substantiate the oral testimony of M.W.1 that the first respondent was a contractor and not an employee in its establishment. The Tribunal has not, in these circumstances, erred in law in drawing an adverse inference for non-production of records. As the Tribunal was satisfied that the first respondent – workman had put in more than 240 days of service, and Section 25-F was attracted, the direction to reinstate him into service cannot be faulted. The fact, however, remains that the Tribunal, in an application filed under Section 2-A(2) of the Act, could not have directed regularization of the services of the first respondent-workman. Violation of Section 25-F of the Act would only entitle a workman to be put back in the same post which he held prior to his termination and, since the first respondent – workman (as is evident from his claim statement) was engaged only on daily wages, the Tribunal could have only directed his reinstatement as a daily wage employee. In proceedings under Section 2-A(2) of the Act, the Tribunal lacks jurisdiction to direct regularization of the services of a workman. As the direction to regularise the first respondent – workman is without jurisdiction, the award, to the limited extent the services of the 1st respondent were directed to be regularized, is set aside. The award, in so far as the first respondent – workman was directed to be reinstated into service, is upheld. The writ petition is allowed in part to the extent indicated hereinabove. The order now passed shall not preclude the first respondent – workman to avail such other remedies, as are available to him in law, to seek regularization of his services in the petitioner–establishment. No order as to costs. __________ 25-2-2010 Usd/asp