The Assistant Director Of ... vs Smt. K. Sarojamma,
2022 Latest Caselaw 3277 AP

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              THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

                       WRIT PETITION No.7985 of 2021

ORDER:

This Writ Petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

".....to issue a Writ, Order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to award dated 04.03.2020 in I.D.No.45 of 2016 on the file of the Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court, Ananthapuramu and quash the same as arbitrary, illegal and declare that the respondent/ workman is not at all entitled for any relief against the petitioner/ respondent herein as well as in the light of Judgment of the Apex Court I Manju Saxena Vs. Union of India (Civil Appeal No.11767-11768 of 2018) and pass such other orders."

2. Heard learned Government Pleader for Services-II for the

petitioners and Mr. Subba Rao Korrapati, learned counsel for the 1st

respondent.

3. The brief facts of the case are that the 1st respondent was

initially engaged as Daily Wage Worker in Sericulture Department on

02.06.1986 in Reeling Unit, Parigi. After completion of five years of

service, she converted as Full Time Contingent worker along with

other similar situated persons and fixed basic pay of the Last Grade

Employees at Rs. 740/- with allowances as per G.O.Ms.No.344, dated

13.11.1989. Subsequently revised scales, 2015 effected as

recommended by the Pay Revision Commission and fixed basic pay at

Rs. 13,000/- for the full time contingent workers of the department.

Subsequently the Government Reeling Unit, Parigi was closed and

other persons working in reeling unit were shifted to work at

A.P.State Sericulture Research Development Institute, Kirikera,

Hindupur in the year 1995. From 1995 to 2002 the 1st respondent

worked therein, later she remained absent and whereabouts are not

known. From 30.08.2002 onwards she never inclined to join duty

before the 1st petitioner. The contention of the 1st respondent is that

she fell ill and took treatment at Bangalore and after recovery she

reported duty on 01.01.2003 before the 1st petitioner, who was not

allowed and orally terminated from service with effect from

01.01.2003, which is incorrect. The 1st respondent filed a case in

I.D.No. 45 of 2016 before the 2nd respondent to pass an Award the

retrenchment of the service of the workman with effect from

01.01.2003 as illegal and direct the petitioners herein to reinstate the

1st respondent herein into service with continuity of service with full

back wages and all other attendant benefits and the same was

allowed. Assailing the same, the present writ petition came to be filed.

4. Per contra, the 1st respondent filed counter by denying all

material averments made in the writ affidavit and mainly contended

that the Industrial Tribunal after considering the law laid down by

the Hon'ble Apex Court, categorically held that the delay in

approaching the Tribunal is not a ground to reject the claim of the

workman when the termination is not in accordance with law.

Further found that there is a master and servant relationship in

between the petitioners and 1st respondent in view of the complete

control and supervision on the workmen vests with petitioners. The

2nd respondent further finds that the petitioners failed to follow the

procedure prescribed under Section 25-G of the Industrial Disputes

Act, held that the workmen is entitled for reinstatement into service

with continuity of service. In view of the categorical findings of the 2nd

respondent with regard to facts and law and in view of the powers

vested under Section 11-A of the Industrial Disputes Act, there are no

further grounds to be decided in this writ petition and requested to

dismiss the same.

5. Learned counsel for the petitioner would contend that the

respondent/ workman deliberately remained absent from duty

unauthorizedly for more than 18 years without any leave or

permission. Therefore she lost his right over her employment and

deemed to have voluntarily left the service and abandoned the same.

Therefore Section 25F of the Industrial Disputes Act will not be

applicable to employees who voluntarily abandoned their service in

the case of Manju Saxena Vs. Union of India1 wherein the Hon'ble

Supreme Court has reiterated that if an employee abandons service

voluntarily then they will not be covered under the ambit of Section

25F of the Industrial Disputes Act, which provides for condition

precedents for retrenchment of workmen.

6. As per F.R-18, A Government servant shall be deemed to

have resigned from service if he/ she is absent without authorization

for a period exceeding one year, or remains absent from duty for a

continuous period exceeding five years with or without leave, or

continues on foreign service beyond the period approved by the State

Government. Accordingly amendment was notified on 01.06.2007 as

per G.O.Ms.No.128. But in the case of Full Time Contingent workers,

no service rules are covered as applicable to regular government

employees like A.P.Last Grade Service Rules, A.P.State and

Subordinate Service Rules, 1996. Hence issue of notice and initiation

of disciplinary action of inquiry does not arise.

7. The 2nd respondent observed that the 1st respondent has not

produced any medical record to show that she was suffering from

hepatitis. With regard to the issue of limitation is concerned, the

learned counsel for the 1st respondent relied on a decision in Barla

Trinadha Rao Vs. Presiding Officer, Industrial Tribunal-cum-

Labour Court, Visakhapatnam2 wherein this Court relying on

decisions of the Hon'ble Supreme Court held that delay in

approaching the Labour Court is not ground to refuse the relief of

reinstatement when the NMR was illegally retrenched and when there

was availability of work. Therefore the 2nd respondent held that the

petition is not barred by limitation.

8. The 2nd respondent further discussed with regard to

relevancy of the Section 25-B of the Industrial Disputes Act, 1947.

2 2007(4) ALT 482

The petitioner had worked for more than 240 days continuously in

twelve months of a calendar year. When once the petitioner is the

workman of the petitioners the provisions of Industrial Disputes Act

is applicable. Section 25-G of Industrial Disputes Act, 1947

prescribes procedure for retrenchment following the principles of last

person of the employment in that category to be retrenched.

Therefore the 2nd respondent finds that the petitioners have not

followed the procedure prescribed under Section 25-G of the

Industrial Disputes Act, 1947 and hence the 1st respondent is

entitled for reinstatement into service.

9. Learned counsel for the petitioners relied on a decision of

Hon'ble Supreme Court in Prabhakar Vs. Joint Director,

Sericulture Department and Another3 wherein the Hon'ble

Supreme Court discussed the Section 2(k) and also Section 2-A of the

Industrial Disputes Act. In this case the 2nd respondent rightly held

that there is employer and employee relationship in between the

petitioners and 1st respondent and when once the petitioner is the

workman of the petitioners the provisions of Industrial Disputes Act

are applicable. Therefore the above case is not applicable to the

present case on this aspect.

10. Having regard to the facts and circumstances of the case,

on perusal of the material on record and considering the submissions

3 Special Leave Petition (Civil) No. of 2015 (SLP(C) No.CC16129 of 2015)

of learned counsel, this Court needs no interference against the

Award passed by the 2nd respondent.

11. Accordingly the Writ Petition is dismissed, by confirming

the Award of the 2nd respondent dated 04.03.2020 in I.D.No.45 of

2026. No costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

__________________________________ DR.JUSTICE K. MANMADHA RAO Date: 04.07.2022.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION No.7985 of 2021

Date 04.07.2022.

KK