THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1504 OF 2004 DATED 2ND AUGUST, 2011 BETWEEN Joint Director (AH), Srikakulam and another …Appellants And Sathivada Venkati and another. …Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1504 OF 2004 JUDGMENT: (Per GM,J) This writ appeal is directed against the order dated 30.04.2004 passed by a learned single Judge of this Court in Writ Petition No.11108 of 1999 confirming the Award dated 17.03.1999 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, whereunder and whereby the retrenchment of first respondent workman was held to be illegal and the appellant management was directed to reinstate the workman within one month from the date of notification of the award with full back wages and continuity of service besides paying him a sum of Rs.500/- towards costs. This Court, while admitting this writ appeal, observed that the order of the learned Single Judge shall be subject to the outcome of this appeal and no interim order of suspension was granted. It is the case of the workman that he joined in the service of the management in July, 1984 and worked continuously till he was removed from service on 15.03.1993 and that the management did not comply with Section 25-F of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) while discharging him from service. He therefore invoked the provisions of Section 2-A(2) of the Act of 1947 by filing the I.D. before the Industrial Tribunal-cum-Labour Court, Visakhapatnam. On the other hand, in the counter filed by the management in the said I.D., it was averred that the workman worked intermittently as casual labour from 01.09.1985 to 23.11.1992 and that he himself left the service of the management on his own. It was further stated that the workman was eking out his livelihood by running a cycle shop. The workman examined himself as W.W.1 besides marking Exs.W.1 and W.2 while the management examined the second appellant herein as M.W.1 and marked Exs.M.1 and M.2. The Labour Court, considering the evidence adduced before it, both oral and documentary, and placing reliance on the Judgment of the Supreme Court in H.D.SINGH V/s. RESERVE BANK OF INDIA[1], held, inter alia, that the retrenchment of the workman was illegal and therefore directed the management to reinstate the workman within one month from the date of notification of the award. It also granted full back wages, continuity of service and payment of Rs.500/- towards costs. Aggrieved thereby, the management filed the writ petition, W.P.No.11108 of 1999, before this Court. A learned Judge of this Court by his order dated 30.04.2004 dismissed the said writ petition. Challenging the said order, the present writ appeal is preferred. Heard the learned Government Pleader for Animal Husbandry for the appellants and Sri V.Sudhakar Reddy, learned counsel for the first respondent workman. The learned Government Pleader vehemently contended that the learned single Judge erred in dismissing the writ petition and ought to have allowed the same, had the facts of the case been considered in the right perspective. She further submitted that in the light of the absence of an averment in the petition filed by the workman before the Labour Court that he was not gainfully employed during the period he was out of service, it ought not to have granted him back wages. She therefore prayed that the writ appeal be allowed. Per contra, the learned counsel for the first respondent workman supported the impugned order contending that the learned single Judge considered all the aspects of the matter in the proper perspective and rightly confirmed the well reasoned award passed by the Labour Court. He therefore asserted that the impugned order did not warrant interference and the writ appeal be dismissed. We have perused the order under challenge passed by the learned single Judge and also the material placed on record. The learned Judge, while dismissing the writ petition, observed thus: “……… No explanation was also forthcoming as to why the management failed to produce either the muster roll or seniority list of casual workers. In the circumstances, as there was no rebuttal of the claim and on consideration of the evidence of the workman examined as W.W.1, the documents Exs.W.1 notice dated 03.01.1995 issued by the management to the workman and the postal acknowledgement-Ex.W.2, the Labour Court considered that the claim of the workman was established and that his retrenchment was in violation of the provisions of Section 25-F of the Act. The retrenchment was rightly declared as illegal and the management directed to reinstate the workman into service within one month with full back wages and continuity of service, besides an amount of Rs.500-00 by way of costs. I find no infirmity in the application of law or exercise of discretion by the Tribunal warranting interference in this writ petition.” It is manifest from the record that the management failed to produce either the muster roll or the seniority list of casual workers before the Labour Court, which are required to be maintained under Section 25-D of the Act of 1947 and Rule 79 of the Andhra Pradesh Industrial Disputes Rules, 1958 respectively in support of its case. Further, there was no plausible explanation from the management as to its failure to produce the same before the Labour Court. The Labour Court therefore held that there was clear violation of the provisions of Section 25-F of the Act of 1947 and the retrenchment was thus wholly illegal. It accordingly passed the award inter alia directing the management to reinstate the workman. The learned single Judge considered all the aspects in their right perspective and upheld the finding of the Labour Court that the retrenchment of the workman was in violation of the provisions of Section 25-F and confirmed the Award dated 17.03.1999 passed by it. The contention of the learned Government Pleader that the workman did not state in his petition filed before the Labour Court that he was not gainfully employed during the period he was out of service cannot be countenanced for the simple reason that such a statement was, in fact, made in the claim statement filed in the I.D. In the light of the law laid down by the Supreme Court in J.K. SYNTHETICS LTD. v. K.P.AGRAWAL[2], it would be sufficient for the workman to make such a statement before the Labour Court and thereupon, the burden would shift to the management to rebut the same. In the present case, in spite of the workman stating that he was not gainfully employed, the management failed to adduce any evidence in rebuttal thereof. We therefore find any reason to interfere with the Award or the order of the learned single Judge in so far as the aspect of payment of back wages is concerned. Considering the facts and circumstances of the case, we do not find any error in the well reasoned order dated 30.04.2011 passed by the learned single Judge of this Court in W.P.No.11108 of 1999. The Writ Appeal is therefore without merit and is accordingly dismissed. In the circumstances, parties shall bear their own costs. __________________________ GHULAM MOHAMMED, J. ____________________ SANJAY KUMAR, J. 2ND AUGUST, 2011. PGS/VGSR [1] AIR 1986 SC 132 [2] (2007) 2 SCC 433