Andhra Pradesh High Court - Amravati
The Municipal Commission, vs Maddireddy Venkata Siva Naga ... on 25 November, 2021
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA,
CHIEF JUSTICE
&
HON'BLE MR. JUSTICE C. PRAVEEN KUMAR
W.A.Nos.1262 and 1263 of 2014
W.A.No.1262 of 2014
(Taken up through video conferencing)
Maddi Reddy Venkata Siva Naga
Purushottam, S/o. Narasimham,
Hindu, aged about 50 years, R/o.
D.No.2-19-21/1, Vogetivari Veedhi,
Tadepalligudem, West Godavari
District.
...Appellant/Petitioner
Versus
The Municipal Commissioner,
Tadepalligudem, Municipality
Tadepalligudem, West Godavari
District and 2 others.
...Respondents/Respondents
Counsel for the Appellant : Mr. M. Pitchaiah
Counsel for Respondent No.1 : Mr. D. Khasim Saheb,
Standing Counsel
Counsel for Respondent No.2 : --
Counsel for Respondent No.3 : --
Date of hearing : 20.10.2021
Date of pronouncement : 25.11.2021.
AND
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W.A.Nos.1262 & 1263 of 2014
W.A.No.1263 of 2014
The Municipal Commissioner,
Tadepalligudem Municipality,
Tadepalligudem, West Godavari
District.
...Appellant/Respondent No.1
Versus
Madireddy Venkata Siva Naga
Purushotham, S/o. Narasimham,
Hindu, D.No.2-19-21/1, Vogetivari
Veedhi, Tadepalligudem, West
Godavari District and 2 others.
...Respondents/Petitioner/
Respondents 2 & 3
Counsel for the Appellant : Mr. D. Khasim Saheb
Counsel for Respondent No.1 : Mr. M. Pitchaiah
Counsel for Respondent No.2 : --
Counsel for Respondent No.3 : --
Date of hearing : 20.10.2021
Date of pronouncement : 25.11.2021.
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W.A.Nos.1262 & 1263 of 2014
COMMON JUDGMENT (Per Hon'ble Sri Justice C. Praveen Kumar)
1) As both the Writ Appeals filed under Clause 15 of the
Letters Patent are interconnected, the same are heard and
disposed of by this Common Judgment.
2) As seen from the record, Writ Petition No.5377 of 2008
came to be filed by one Madireddy Venkata Siva Naga
Purushotham, seeking issuance of Writ of Mandamus to
declare the Award, dated 10.07.2007, passed by the Labour
Court, Guntur, in I.D.No.138 of 2003, as illegal, improper and
violative of Articles 14 and 21 of Constitution of India and
consequently to reinstate the petitioner with continuity of
service, backwages and all other attendant benefits.
3) The averments in the affidavit filed in support of the
Writ Petition, would show that the petitioner joined as
Motivator in Engineering Section in Tadepalligudem
Municipality on 01.04.1988 worked as Motivator in Low Costs
Sanitation Works till 31.03.1992 in the very same
Municipality.
(i) While things stood thus, on 01.04.1992, he was orally
terminated from the service without issuing any notice as
required under Section 25-F of the Industrial Disputes Act,
1947 ["here-in-after referred to as "I.D. Act"].
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(ii) Since, the action of the respondents was contrary to
law, the Writ Petitioner i.e., Madireddy Venkata Siva Naga
Purushotham filed I.D.No.138 of 2003 before the Labour
Court, challenging his termination from service. After
conducting an enquiry, the Labour Court dismissed the I.D.
holding that the petitioner cannot claim to be a regular
worker or a casual worker as he has not put in 240 days of
service preceding the date of termination. It was further held
that the order of termination was not in violation of Section
25-F of the I.D. Act.
(iii) Assailing the same, W.P.No.5377 of 2008 was filed.
By an order, dated 04.12.2013, a learned Single Judge of the
Combined High Court allowed the Writ Petition, holding that
the petitioner has put in 240 days of service in the year prior
to his removal and as such, he is entitled for reinstatement as
Motivator with continuity of service with all attendant benefits
but without backwages.
4) Being aggrieved, the Writ Petitioner filed W.A.No.1262 of
2014 challenging denial of backwages, while the Municipal
Commissioner, Tadepalligudem Municipality, filed
W.A.No.1263 of 2014 questioning the order of reinstatement
with all attendant benefits.
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W.A.Nos.1262 & 1263 of 2014
5) Sri D. Khasim Saheb, learned Standing Counsel for
respondent Municipality mainly submits that there is
absolutely no material available on record to show that the
petitioner has put in 240 days of continuous service in the
year preceding the order of termination. He submits that the
burden of proving the period of service, is on the petitioner
and as he failed to demonstrate the same, the learned Single
Judge erred in holding that the petitioner has put in 240 days
of continuous service. He further submits that by no stretch
of imagination, the mathematical calculation made by the
learned Single Judge in holding that the petitioner has
completed 240 days of service in a calendar year, cannot be
accepted, in the absence of any evidence being placed to that
effect.
6) On the other hand, Sri M. Pitchaiah, learned counsel
appearing for the workmen, would submit that the finding of
the learned Single Judge in holding that the petitioner has
worked continuously for a period of 240 days, is evident from
the counter filed by the Municipality itself and as such, no
separate evidence need be adduced to prove an admitted fact.
He further submits that having reinstated the petitioner,
learned Single Judge erred in rejecting the backwages though
some of the workmen who stand on the same footing as that
of the Writ Petitioner, were ordered to be paid backwages.
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7) The point that arises for consideration is, whether the
Order impugned in the two Writ Appeals warrants interference
and, if so, to what extent?
8) The main plank of the argument advanced by the
learned counsel appearing for the Municipality is with regard
to violation of Section 25-F of the I.D. Act or in other words,
whether the Writ Petitioner has continuously worked for 240
days in the year preceding the order of termination being
passed by the Municipality.
9) It is to be noted here that, the action of the Municipality
in terminating the service of the petitioner, came to be
challenged vide I.D.No.138 of 2003 before the Labour Court
which, passed a „nil‟ Award, upholding the Order of oral
termination passed by the respondent authorities.
10) It is not in dispute that the petitioner joined as a
Motivator in Engineering Section of the Municipality on
01.04.1988 and he was terminated on 01.04.1992, though he
discharged his duties to the satisfaction of the management.
The question is whether there is any material on record to
show that the petitioner continuously worked for 240 days in
the year preceding date of termination of service. It is nodoubt
true that the initial burden is on the Writ Petitioner to
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W.A.Nos.1262 & 1263 of 2014
establish that he has put in 240 days of continuous service.
In discharge of his initial burden, the petitioner placed on
record the Service Certificate issued by the Municipal
Commissioner, which would disclose that prior to his
termination, the petitioner worked for about 1226 days,
between the period 1988 to 1992, as per the Office records.
11) After deducting 52 weekly and 8 National Holidays, the
total number of man-days would be 305 days in a year.
As the petitioner admittedly worked for four consecutive
years, the total number of man-days would be 1220 days out
of 1460 days (4 years). Therefore, the fact that the petitioner
worked for more than 1220 days (in four years) is evident
from the Service Certificate issued by the respondent No.1
Municipality. If the said period is taken into consideration, it
stands establishes beyond doubt that the petitioner has put
in 240 days of continuous service.
12) Further, the averments in the Paragraph Nos.13 and 14
of the counter filed by the respondent No.1 would reveal that
the petitioner worked for a total period of 1226 days on daily
wages from 01.04.1988 to 31.03.1992 as per the office
records available. Though an averment is made stating that
there is break in service during his tenure from 01.04.1988 to
31.03.1992, but the record available with the Municipality, is
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W.A.Nos.1262 & 1263 of 2014
not placed either before the Labour Court or before the Single
Judge. Further in Paragraph No.14 of the counter, it has
been categorically stated that the petitioner is employed on
temporary basis and worked continuously for more than 240
days within a period of 12 months preceding the termination
on 01.04.1992. It will be appropriate to extract Paragraph
Nos.13 and 14 of the counter, which are as under:
13. It is submitted that the petitioner worked as a
Motivator in the Engineering Section in a Low Cost
Sanitation Scheme on nominal rolls on daily wages for a
total period of 1226 days with a break of service with
effect from 01.04.1988 to 31.03.1992 as per office records
available. Accordingly the services of the writ petitioner
are disposed with on 01.04.1992. Therefore the question
of follow-up of procedure contemplated under Section 25-F
of ID Act does not arise. The services of the writ petitioner
are based on availability of the funds by that time.
14. The respondent humbly submit that the petitioner
is employed on temporary basis and worked continuously
for more than 240 days within a period of 12 months
preceding to termination on 01.04.1992, and never worked
as prescribed under law and as such oral termination of
services are not valid under law.
When the averments in the counter run contra to the stand
taken by the Municipality, we feel that the finding of the
learned Single Judge in holding that the petitioner has put in
240 days of continuous service warrants no interference.
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13) The next issue that would fall for consideration is as to
whether the petitioner is entitled for backwages. As the
payment of backwages is having a discretionary element
involved in it has to be dealt with, in the facts and
circumstances of each case and no straight-jacket formula
can be evolved. Further, the authorities did not adduce
evidence to prove that the Writ Petitioner was gainfully
employed during the period. The said circumstances, in our
view would be a relevant for determining the quantum of
backwages to be paid.
14) Further, the material on record would show that the
Commissioner, Tadepalligudem Municipality issued
proceedings dated 16.11.2000 approving the reinstatement of
J.B. Sivanand, who was working as a N.M.R. in the Lighting
Section of the Tadepalligudem Municipality, on 01.04.1992,
by treating as if he has been in Service from 01.04.1992 and
to pay backwages at the rate of 50%. Similarly, the material
on record would show that the Commissioner,
Tadepalligudem Municipality issued proceedings dated
16.11.2000 approving the reinstatement of K.Satyanarayana,
who was working as a N.M.R. in the Engineering Section of
the Tadepalligudem Municipality, on 30.11.1992, by treating
as if he has been in Service from 30.11.1992 and pay
backwages at the rate of 50%.
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15) Having regard to the orders passed above; as the case of
the petitioner stands on the same footing and in view of the
judgment of Hon‟ble Apex Court in Management of
Madhurantakam Cooperative Sugar Mills Limited vs. S.
Viswanathan1, and Hindustan Motors Limited vs. Tapan
Kumar Bhattacharya and others2, we direct the
respondents to pay 50% of the backwages for the concerned
period. Accordingly, Writ Appeal No.1262 of 2014 is allowed
to the extent indicated above; while Writ Appeal No.1263 of
2014 filed by Tadepalligudem Municipality challenging the
reinstatement of the writ petitioner is dismissed. No order as
to costs.
All pending miscellaneous petitions, if any, shall stand
closed.
PRASHANT KUMAR MISHRA, CJ C. PRAVEEN KUMAR, J
MS / SM
[(2005) 3 SCC 193]
(2002) 6 SCC 41
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W.A.Nos.1262 & 1263 of 2014
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA,
CHIEF JUSTICE
&
HON'BLE MR. JUSTICE C. PRAVEEN KUMAR
W.A.Nos.1262 and 1263 of 2014
(Per Hon'ble Mr. Justice C. Praveen Kumar)
Date: 25.11.2021
MS / SM
