IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 5710 of 1999 Between: District Co-operative Central Bank, Rep. by General Manager, Vizianagaram. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. by Secretary, Labour Employment Training & Factories, (LAB-I) Dept., Secretariat Buildings, Hyderabad. 2 The Industrial Tribunal cum Labour Court, Visakhapatnam. 3 M.V.R. Subba Rao, S/o Ramabhadra Rao, Door No.7-145-5, Prahlada Puram, Chimhachalam Road, Visakhapatnam. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or direction, more particularly one in the nature of Writ of Mandamus declaring the orders passed by the 2nd Respondent in I.D.No.336/95 Dt: 26-10-1998 and the Consequently notification issued by the 1st Respondent in G.O.Rt.No.2068, Labour Employment Training and Factories (LAB-I) Dept., dt: 26-11-1998 as highly illegal, arbitrary, unjust, improper and against the provisions of the I.D.Act and consequently set aside the same and passed such other or further order or orders, as are deemed fit and proper in the circumstances of the case. Counsel for the Petitioner : MR.BADANA.BHASKARA RAO Counsel for the Respondent Nos.1 & 2 : GP FOR LABOUR Counsel for Respondent No.3 : MR.M.LAKSHMANA SARMA The Court made the following : ORDER : This writ petition is filed by the District Co-operative Central Bank, Vizianagaram, challenging the award of the Industrial Tribunal-cum-Labour Court, Visakhapatnam, dated 26th October 1998, passed in I.D.No.336 of 1995. 2. The 3rd respondent herein has filed an application under Section 2-A(2) of the Industrial Disputes Act, 1947 before the Industrial Tribunal-cum-Labour Court, Visakhapatnam, seeking directions for his reinstatement with backwages. It was the case of the 3rd respondent in the application filed before the Tribunal, that he worked with the petitioner-Bank from 1st June 1993 to 25th January 1995. It was stated that from 26th of January 1995, his services were orally terminated without complying with the provisions under Section 25-F of the Industrial Disputes Act, 1947. 3. The petitioner-Bank has filed counter affidavit before the Tribunal, denying the allegations made in the application. 4. Before the Tribunal, the 3rd respondent-workman was examined as WW-1 and no documents were marked on his behalf. On behalf of the petitioner-management, MW-1 was examined and a Circular, dated 30th January 1987 was marked. The Tribunal, having recorded a finding that the 3rd respondent has worked for more than 240 days in a period of one year preceding the retrenchment, and his services were terminated without following the provisions of Sections 25-F and 25-D of the Industrial Disputes Act, has ordered for reinstatement with full backwages and continuity of service. 5. In this writ petition, it is argued by the learned counsel appearing for the petitioner-Bank that there is no evidence to prove that respondent No.3 has worked for 240 days in a year, preceding the date of retrenchment. It is further submitted that he was appointed in a vacancy which is not within the approved strength of the posts, and in that view of the matter, having regard to the financial stringency faced by the bank, following the circular instructions, the services of 3rd respondent were dispensed with. It is submitted that in any event, the 3rd respondent was not to be granted any backwages by applying the principle of ‘no work – no pay’. 6. On the other hand, it is submitted by Sri M.Lakshmana Sharma, appearing for the 3rd respondent- workman that as much as his services were terminated without following the provisions of Section 25-F of the Industrial Disputes Act inspite of working for more than 240 days, the Tribunal has rightly ordered for reinstatement, with back wages. 7. During the course of arguments, a copy of the application filed under Section 2-A(2) of the Industrial Disputes Act, 1947 is placed before this Court. A perusal of the said application shows that there is no submission made by the 3rd respondent-workman that he was not gainfully employed anywhere after termination of his services from the bank from 26th January 1995. Although it was the case of the petitioner-Bank that respondent No.3 did not work for more than 240 days in the year preceding to his retrenchment, he has given the year-wise details of the number of days he had worked, and based on such evidence, the Tribunal has found that the 3rd respondent has worked for more than 253 days during the period from 01.06.1993 to 31.05.1994, and 169 days thereafter, till the date of his retrenchment. In any event, if 12 months period is taken into account preceding the date of retrenchment, it is proved that he has worked for a period of more than 240 days. Though it was pleaded by the petitioner-Bank that no other evidence is produced by the 3rd respondent in support of his contention that he has worked for more than 240 days, but when the same was not disproved by the bank even during the cross-examination of the 3rd respondent, there is no reason for not believing the statement made by him, especially when he has given the periods during which he has worked. In that view of the matter, and having regard to the evidence on record, the Tribunal has correctly recorded a finding with regard to working of 240 days by respondent No.3, preceding the date of retrenchment. Therefore, the award of the Tribunal to the extent of declaring the retrenchment as illegal, is in consonance with the provisions of Section 25-F of the Industrial Disputes Act. 8. So far as back wages is concerned, in a recent judgment in the case of J.K.Synthetics Ltd. V. K.P.Agrawal[1], the Hon’ble Supreme Court has held that the employee must plead in the application filed under Section 2-A(2) of the Industrial Disputes Act, that he was not gainfully employed from the date of termination. In the said judgment, it was further held that though the employee cannot be asked to prove negative, but atleast he has to plead and state on oath that he was not gainfully employed after termination of his services. In the present case on hand, there is no such pleading by the 3rd respondent, to discharge his initial burden that he was not gainfully employed during the period of termination. Further, even on the ground of ‘no work – no pay’ also, in all cases, backwages need not be followed as an automatic consequence to the order of reinstatement. Accordingly, the award of the Tribunal to the extent of granting backwages, is to be modified. 9. For the aforesaid reasons, the writ petition is allowed in part, confirming the direction of the Tribunal to reinstate the workman with the benefit of continuity of service, but however, without any backwages. The award of the Tribunal, dated 26th October 1998, passed in I.D.No.336 of 1995 stands modified to the extent indicated above. The petitioner-Bank is entitled for refund of the backwages that have been deposited pursuant to the order of this Court, dated 30th April 1999, passed in W.P.M.P.No.7126 of 1999. 10. The writ petition is partly allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 3rd March 2009. ajr [1] (2007) 2 SCC 433