IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SECOND DAY OF APRIL TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.18113 of 2000 Between: M/s. The Andhra Sugars Ltd. (Chemicals & Fertilizer Division) Kovvur, West Godavari District, rep. by Deputy Manager (Personnel) Mr. G. Balakrishna. … Petitioner And 1. Labour Court, Guntur, rep. by its Presiding Officer 2. Bollipo Bhushanam, S/o. Yohan, Dommeru Post, Kovvur Mandal, West Godavari District. … Respondents Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court may be pleased to issue a Writ of Certiorari or any other appropriate Writ, direction or directions to quash the award passed by the first respondent in I.D.No.272/1994 dated 13-03-2000. Counsel for the petitioner: Mr. Vedula Srinivas Counsel for the first respondent: G.P., Labour Counsel for the second respondent: Mr. M. Pitchaiah The court made the following Order: In this writ petition, challenge is to the award dated 13-03- 2000 passed by the Labour Court, Guntur in I.D.No.272 of 1994. 2. By the aforesaid award, the Labour Court declared that the second respondent herein is entitled for reinstatement with 50% back-wages and continuity of service. 3. The second respondent herein filed an application under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short ‘the Act’) before the Labour Court, Guntur, with the following averments: He joined as Painter in the petitioner-industry on 10-01- 1984 and worked as such continuously without any blemish and to the satisfaction of his superior officers upto 06-01-1994. The petitioner-industry did not implement various labour welfare benefits to him and others and he was made to work on weekly and national holidays. He made a complaint alleging that he was not given minimum wages. When he went to duty on 07-01-1994, he was informed that his services were terminated. Thereafter, he submitted a representation dated 05-07-1994 to the petitioner- industry with a request to take him back into service and as there was no response to the same, he approached the Labour Court seeking to declare the oral termination of his service as illegal, in view of his continuous service from 10-01-1984 to 06-01-1994. 4. The petitioner-industry filed counter before the Labour Court denying the averments made by the second respondent. In the counter, it is stated that the second respondent never worked from 10-01-1984 to 06-01-1994 continuously, as alleged by him, but he was employed as a casual worker, on a work of casual nature, whenever there was work, purely on casual and temporary basis, for a few days and on very few occasions. Further, it is stated that the second respondent himself stopped to come to work as casual worker; as such, the question of conducting any enquiry or paying notice pay or granting compensation to him under Section 25-Fof the Act does not arise. It is also stated in the counter that the second respondent, who was gainfully employed elsewhere, filed the said application only to coerce the petitioner-industry to regularize his services and the petitioner-industry is ready to provide work of casual nature to the second respondent, whenever there is such work and all the casual workers will be intimated through notice exhibited in the notice board to know the availability of work. 5. Before the Labour Court, the second respondent was examined as W.W.1 and Exs.W.1 to W.5 were marked. On behalf of the petitioner-industry, no one was examined, but reply dated 05-08-1994 was marked as Ex.M.1. 6. The Labour Court, having considered the oral and documentary evidence on record, recorded a finding that the second respondent’s version of termination of service by the petitioner-industry orally with effect from 07-01-1994 could not be disproved by the petitioner-industry and as the petitioner-industry could not establish its plea of abandonment of service by the second respondent voluntarily, therefore, the contention of the second respondent that his service was terminated by the petitioner-industry on 07-01-1994 has to be accepted. By observing that the termination of the service of the second respondent is illegal, the Labour Court held that since the termination of the second respondent from service amounts to retrenchment, the provision under Section 25-F of the Act is attracted, provided the condition of continuous service for a period of one year is fulfilled. Further finding is recorded that, according to the second respondent he worked in the petitioner-industry from 10-01-1984 to 06-01-1994 and as the petitioner-industry did not adduce any evidence to establish that the second respondent was not in continuous service of one year, it shall be presumed that the second respondent was in continuous service of one year as required under Section 25-F of the Act. Thus, it is held that the termination of the second respondent from service is in violation of the provision under Section 25-F of the Act and hence the same is illegal. 7. With regard to payment of back-wages, the Labour Court, while recording a finding that though there was an offer from the petitioner-industry to employ the second respondent, he did not express his willingness to accept such employment, held that the second respondent has got some employment elsewhere and therefore he can be paid only 50% of back-wages. With the aforesaid findings, while declaring and setting aside the termination of the second respondent from service as illegal, the Labour Court directed the petitioner-industry to reinstate him into service with 50% of back-wages and continuity of service. 8. Heard Sri V. Srinivas, learned counsel for the petitioner and Sri M. Pitchaiah appearing for the second respondent. 9. In this writ petition, it is contended by Sri V. Srinivas, learned counsel for the petitioner, that the Labour Court, misconstrued the provisions of the Industrial Disputes Act, 1947 and by recording perverse findings contrary to the evidence on record, ordered for reinstatement of the second respondent into service with 50% of back-wages. It is submitted that the second respondent was working as a Painter only on casual basis as and when there was work and he has not at all worked for a period of 240 days in a year. It is further submitted that though the initial burden of proving that he has worked continuously for 240 days in a year is on the second respondent, however, the Labour Court in absence of discharge of such burden by the second respondent, erroneously recorded a finding that the second respondent worked for more than 240 days. It is further submitted that when the petitioner-industry had sent a reply to the representation submitted by the second respondent, there was no response from him and he did not turn up to work as casual worker. It is lastly submitted that the Labour Court, while recording a finding that the second respondent was employed elsewhere, erred in ordering payment of back-wages to him. The learned counsel for the petitioner, in support of his contentions, placed reliance on the judgments of the Hon’ble Supreme Court in the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and others[1] and Chief Engineer (Construction) v. Keshava Rao[2]. 10. On the other hand, it is contended by Sri M. Pitchaiah, learned counsel appearing for the second respondent, that in spite of the fact that the second respondent worked for the period from 10-01-1984 to 06-01-1994, i.e. nearly for 10 longs years, his services were dispensed with, without following the provisions under the Industrial Disputes Act, 1947. It is submitted that though the second respondent has alleged that he has worked for the period from 10-01-1984 to 06-01-1994, the defence of the petitioner-industry was vague and evasive. It is further submitted that in view of the provision under Order VIII Rule 4 of the Code of Civil Procedure, 1908, the evasive denial of the petitioner-industry amounts to admission of the allegation of the second respondent. It is further submitted that as much as the second respondent was continuously in the service of the petitioner-industry, he was given an identity card as contemplated under the regulations framed under the Employees’ State Insurance State Insurance Act, 1948. The learned counsel for the second respondent, in support of his submission that the action of the petitioner-industry amounts to evasive denial, placed reliance on a judgment of the Hon’ble Supreme Court in the case of Badat and Co., Bombay v. East India Trading Co.[3] and also a judgment of this court dated 25-07-2000 passed in W.P.No.13382 of 2000. 11. In the case of Manager, Reserve Bank of India (1 supra), the Hon’ble Supreme Court, while considering the provisions of Sections 25-F and N of the Industrial Disputes Act, 1947, held that the burden of proof is on the workman to show that he completed 240 days of service. In the said judgment, it is categorically held that the onus of proof does not shift to employer nor is the burden of proof on the workman discharged, merely because employer fails to prove a defence or alternative plea of abandonment of service. It is also observed in the said judgment that mere filing of an affidavit by the workman to the effect that he worked for a period of 240 days continuously and making repeated representations is not sufficient evidence that can discharge the said burden and other substantive evidence needs to be adduced to prove 240 days’ continuous service. 12. In the case of Chief Engineer (Construction) (2 supra), while considering the provisions with reference to Sections 25-F and 11 of the Industrial Disputes Act, 1947, the Hon’ble Supreme Court has held that unless initial burden of establishing the factum of continuous work for 240 days in a year is discharged by workman and the employer fails to produce evidence in rebuttal, finding of non-compliance cannot be recorded. 13. In the instant case, though it is the case of the second respondent that he had worked for the period from 10-01-1984 to 06-01-1994, except his own statement in the claim petition, there is no evidence on record to substantiate his case. Not even a co- worker was examined to support his plea. 14. I have perused the statements recorded on oath before the Tribunal. Even in his deposition, except stating that he has worked from 10-01-1984 to 0601-1994, the second respondent did not depose that he has worked for a continuous period of 240 days in a year. On the other hand, to support the plea of the petitioner- industry that the second respondent was offered work on casual basis, as and when such work was available, in the cross- examination, the second respondent has made a statement to the following effect: “It is true the management used to pay the wages calculating the number of days worked by us. My wages are paid once in fortnight calculating the number of days worked on daily wage basis. It is true that I am not a permanent employee. It is true the management used to pay salaries to permanent employees once in a month.” 15. The aforesaid part of the deposition of the second respondent makes it clear that he was not in continuous employment for a period of one year at any point of time. Even though the petitioner-industry has taken a plea that the second respondent was not in continuous service of 240 days in a year, in absence of discharge of initial burden of proving that the second respondent worked continuously for a period of 240 days in a year, simply on the ground that the petitioner-industry did not produce evidence in rebuttal, the Labour Court has recorded a finding in favour of the second respondent that he has worked for a period of 240 days continuously in a year. The said finding is not only illegal and perverse but also runs contrary to the evidence on record and the same cannot be accepted in view of the law laid down by the Hon’ble Supreme Court in the judgments referred above. In view of the finding referred above, as the second respondent failed to prove that he has worked continuously for a period of 240 days in a year, the further question, i.e. whether the termination of his service is illegal and is in violation of provisions under Section 25-F of the Industrial Disputes Act, 1947, does not fall for consideration. Moreover, it is to be noticed that even in the reply to the representation submitted by the second respondent, the petitioner-industry has offered employment to the second respondent, subject to availability of casual work. In spite of the said offer, the second respondent did not make any attempt to approach and join the petitioner-industry. Further, the petitioner- industry has categorically stated in the counter affidavit that in view of alternative employment secured by the second respondent, he had abandoned his service on his own and failed to join in spite of the offer made by them. The Labour Court, while observing that the second respondent has not expressed his willingness to accept the offer made by the petitioner-industry, held that it can be presumed that the second respondent got some employment elsewhere and, therefore, ordered 50% of back- wages. Once the Labour Court has found that the second respondent was employed elsewhere, there is absolutely no reason or justification for awarding back-wages. The very conduct of the second respondent, namely, filing representation nearly after six months of his alleged termination from service and further not joining in the petitioner-industry in spite of the offer, makes it clear that he was employed elsewhere. Though the Labour Court has rightly presumed that the second respondent must have been employed elsewhere, but erroneously ordered payment of back- wages to the extent of 50%. Once it is found that the second respondent is employed elsewhere, he is not entitled to any back- wages. 16. Though the learned counsel for the second respondent placed reliance on the judgment in the case of Badat and Co. (3 supra), in support of his contention that the defence of the petitioner-industry was evasive, however, I do not find any such evasive reply on the part of the petitioner-industry. In its counter affidavit filed before the Labour Court, the petitioner-industry has taken a clear stand that the second respondent was in casual employment and he was being assigned work as and when work was available and that he did not work continuously for a period of 240 days in a year at any point of time. As much as the stand taken by the petitioner-industry is clear, it cannot be said that the defence/reply of the petitioner-industry was either vague or evasive, so as to give effect to Order VIII Rule 4 of CPC. The Hon’ble Supreme Court, in the case of Badat and Co. (3 supra), on which reliance is placed by the learned counsel for the second respondent, held that in the suit, the written statement must deal specifically with each allegation of fact in the plaint and when the defendant denies any such fact, he must not do so evasively, but should answer the point of substance and if his denial of fact is not specific, but evasive, the said fact shall be taken to be admitted. But, as much as in this case, as I am of the view that there is no such vague or evasive defence taken by the petitioner-industry, the said judgment would not render any assistance to the second respondent. Though further reliance is placed by the learned counsel for the second respondent on a judgment of this court dated 25-07-2000 passed in W.P.No.13382 of 2000, however, in view of the subsequent judgments of the Hon’ble Supreme Court referred to (1 and 2 supra), the said judgment also would not help the learned counsel for the second respondent in support of his arguments. 17. The learned counsel for the second respondent has also placed reliance on the identity card issued by the petitioner- industry in support of the plea of the second respondent that he has worked in the petitioner-industry continuously for a period of 240 days. However, the same would not improve the case of the second respondent. Regulation 17 of Employees’ State Insurance (Gen.) Regulations, 1950, framed under Section 97 of Employees’ State Insurance Act, 1948, provides for issuance of identity card. As per the said Regulation, the employer shall, if and when the employee has been in service for three months, obtain the signature or thumb-impression of the employee on the identity card and shall, after making relevant entries thereon, deliver the identity card to him. In this case, merely because the petitioner- industry has issued identity card to the second respondent, that cannot be taken as a proof that the second respondent has served the petitioner-industry continuously for a period of 240 days in a year, so as to complain violation of the provisions under Section 25-F of the Industrial Disputes Act, 1947. 18. Though the initial burden of proving that he has worked continuously for 240 days in a year is on the second respondent, however, the Labour Court in absence of discharge of such burden by the second respondent erroneously recorded a finding that the second respondent worked for more than 240 days. Further, though the Labour Court has rightly presumed that the second respondent must have been employed elsewhere, but erroneously ordered payment of back-wages to the extent of 50%. Therefore, the award of the Labour Court cannot be sustained. 19. For the foregoing reasons, the award of the Labour Court, Guntur, passed in I.D.No.272 of 1994 is hereby set aside. 20. The writ petition is allowed. No order as to costs. _______________________ R. SUBHASH REDDY, J. April 2, 2009 MRR [1] (2005) 5 SCC 100 [2] (2005) 11 SCC 229 [3] AIR 1964 SC 538