ORDER
P.S. Narayana, J.
1. The writ petition is filed for a writ of certiorari calling for records relating to and connected with the award dated 14-8-1995 in ID No. 649 of 1993 on the file of the first respondent and quash the same and to pass such other suitable order.
2. The Commissioner of the Municipal Corporation of Hyderabad is the writ petitioner. It is stated that the second respondent herein, hereinafter referred to as ‘the workman’, was engaged by the Municipal Corporation of Hyderabad, hereinafter referred to as ‘the Corporation’, on 1-9-1988 to do garden work on daily wage basis and he was being paid wages whenever he attended the work. It is also stated that the workman was very irregular and worked upto 30-9-1990 and absented a number of times from 1-9-1988 to 30-9-1990 and he never worked for a continuous period of more than 240 days at any spell and he used to absent himself without any prior permission or leave and he attended the work whenever it was convenient for him to do so. It is further stated that the workman left the work and absented from 1-9-1990 and after absenting for a period of eight months he approached again on 1-6-1991 and requested to re-engage him and after-being warned not to repeat the prior conduct, the workman was again permitted to work on daily wage with effect from 1-6-1991 and after working for some time as usual he absented himself without permission or leave and had abandoned his work from 28-3-1992 and he never turned up after 28-3-1992. It is further stated that having absented and voluntarily abandoned the work, the workman had approached the first respondent, hereinafter referred to as ‘the Labour Court’, by filing ID No. 649 of 1993 after a gap of nearly one year stating that he was terminated from service without following procedure contemplated under Section 25-F of the Industrial Disputes Act, 1947, for short ‘the Act’. It is further stated that the counter-affidavit filed before the Labour Court clearly demonstrates that the workman never worked continuously for 240 days. However, the Labour Court without considering the material available on record and the evidence of MW1 in proper perspective had passed the impugned award. Aggrieved by the same, present writ petition has been filed.
3. Sri Ganta Rama Rao, the learned Counsel representing the Corporation had submitted that there is no evidence to show that the workman had continuously worked for a period of 240 days and on the contrary the evidence of MW1 clearly establishes that the workman had never worked continuously for 240 days. It was also further contended that the workman had voluntarily abandoned to attend the duty and hence there is no question of invoking the provisions of the Industrial Dispute Act. It was also contended that the Labour Court ought to have dismissed the ID inasmuch as the Corporation is not an industrial establishment and there is no motive whatsoever and hence the Corporation cannot be termed as an industry within the meaning of the Industrial Disputes Act. The learned Counsel also had drawn my attention to several observations made in the impugned award and had submitted that these findings are not based on any evidence or that these findings have been recorded though no sufficient evidence is available on record. The learned Counsel also had drawn my attention to the evidence of WW1 and also MW1 in this regard. It was also further contended that, at any rate, the Labour Court had committed a grave error in awarding full back wages without recording a finding whether the workman was otherwise gainfully employed during the relevant period or not. At any rate, in the facts and circumstances, the workman is not entitled to back wages at all.
4. Sri Ramachander Rao, the learned Counsel representing the workman had submitted that the question whether the Corporation is an industry or not was in fact not raised before the Labour Court. However, for the first time the said question is being raised, at this stage. The learned Counsel also further maintained that even if the petitioner-Corporation can be permitted to raise this question, in view of the decision
of the Apex Court in Municipal Corporation of Delhi v. Femala Workers, 2000 (1) LLJ 846, this question is well settled that Municipal Corporation also falls within the meaning of industry under the provisions of the Industrial Disputes Act. The learned Counsel while making elaborate submissions had taken me through the evidence of WW1 and MW1 and also documents Ex.W. Nos. 1 to 4 and the findings recorded at paragraphs 7 to 22 of the impugned award. The learned Counsel also had drawn my attention to paragraphs 10, 12, 13 and 14 and pointed out that in fact the Labour Court had recorded a finding that the workman continuously worked for 240 days and this is a finding of fact based on evidence. The learned Counsel states that when the Labour Court had arrived at such a conclusion on appreciation of evidence, such a finding normally need not be interfered with while exercising the power under Article 226 of the Constitution of India. The learned Counsel while explaining about the term or expression ‘continuity of service’ had placed reliance on a decision of the Supreme Court in Digwadih Colliery v. Their Workmen, . The learned Counsel also had submitted that adverse inference has to be necessarily drawn for non-production of records by the Corporation and the Labour Court rightly did the same and in this view of the matter the impugned award does not warrant any interference. The learned Counsel placed reliance on H.D. Singh v. R.B.I., 1986 (1) LLJ 127, and K. Chandramma v. Labour Court-I, (DB). It was also brought to my notice that though the amount deposited by the Corporation is lying in deposit, the Labour Court is not permitting the workman to withdraw the amount on the ground that there is no specific order in this regard. The learned Counsel also justified the award in the facts and circumstances of the case.
5. Heard both the Counsel and also perused the material available on record.
6. As already stated above, the writ petition is filed questioning the award of the Labour Court by the Municipal Corporation of Hyderabad. The question whether MCH can be treated as an industry within the meaning of the ID Act had fallen for consideration on several occasions and in Municipal Corporation of Delhi’s case (supra) it was observed thus:
“Now it is to be remembered that the Municipal Corporations or Boards have already been held to be “industry” within the meaning of “Industrial Disputes Act”. In Budge Budge Municipality v. Sri P.R. Mukherjee, (1953-1 LLJ-195) (SC), it was observed that the Municipal activity would fall within the expression “undertaking” and as such would be an industry. The decision was followed in Municipal Corporation of Delhi v. Femala Workers, 2000 (1) LLJ 846Digwadih Colliery v. Their Workmen, H.D. Singh v. R.B.I., 1986 (1) LLJ 127, and K. Chandramma v. Labour Court-I, Budge Budge Municipality v. Sri P.R. Mukherjee, (1953-1 LLJ-195) (SC) Baroda Borough Municipality v. Its Workmen, (1957-1 LLJ-8) (SC), in which the Court observed that those branches of work of the Municipalities which be regarded as analogous to the carrying on of a trade or business, would be “industry” and the dispute between the Municipalities and their employees would be treated as an “industrial dispute”. This view was reiterated in the Corporation of the City of Nagpur v. Its Employees and others, (1960-I-LLJ-523)(SC). In this case, various Departments of the Municipality were considered and certain departments including General Administration Department and Education Department were held to be covered within the meaning of “industry”. The Punjab and Haryana High Court in Municipal Committee, Bhiwani v. Padam Singh and Ors., 1973 Labour and Industrial Cases 1512, held that fire-brigade service, maintained by Municipal Committee, was an “industry”. But a contrary view was taken by the Bombay High Court in Administration of the City of Nagpur Municipal Corporation v. Labour Court, Nagpur, 1967 Labour and Industrial Case 107, which held that the fire-brigade service, maintained by the Municipal Corporation, was not an “industry”. We are not, in this case, attempting to resolve the conflict between the Punjab and Haryana High Court and the Bombay High Court but what we intend to emphasise is that this
Court has already held some of the Departments of the Municipal Corporation to be an “industry”. The High Courts have also held the running of dispensary as also sanitary and conservancy activities to be an “industry”. (See; Sirur Municipality v. Its Workmen, (1960 II-LLJ657) (Bom-DB); Municipal Council, Washim v. Manguji Zenduji Dhamane, 1978 Labour and Industrial Cases 881. The Andhra Pradesh High Court in Rajendranagar Municipality v. B.V. Perraju, 1995 Labour and Industrial Cases 2102, has held that storing and distribution of water was a systematic activity of the Corporation which would fall within the definition of “industry”.
Taking into consideration the enunciation of law as settled by the Court as also the High Courts in various decisions referred to above, the activity of the Delhi Municipal Corporation by which construction work is undertaken or roads are laid or repaired or trenches are dug would fall within the definition of “industry”. The workmen or, for that matter, those employed on muster roll for carrying on these activities would, therefore, be “workmen” and the dispute in the light of various statutory provisions of the Industrial Law, one of which is the Maternity Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not different.”
7. Apart from this preliminary objection, no doubt several other contentions have been raised and elaborately argued by the learned Counsel on factual aspects. The main contention which was strenuously urged by the learned Counsel representing the Corporation is that the very conduct of the workman goes to show that he had been habitually absenting and he had voluntarily abandoned the work and that the Labour Court totally ignored to take into consideration the conduct of the workman. As can be seen from the evidence recorded in the impugned award, there is discussion about the evidence of WW1 and MW1 and also the documents Exs.W1 to 3. At paragraph 14 a clear finding had been
recorded that there is evidence to show that the petitioner had worked for the requisite period continuously. Further, a finding also had been recorded relating to this aspect at paragraphs 15 to 18 and these are the findings recorded on the basis of the evidence available on record. This Court sitting as a writ Court need not re-appreciate the said evidence. It is also not in dispute that the Corporation had not placed material so as to negative the evidence of WW1 to the effect that he had continuously worked for a period of 240 days and in the absence of any rebuttal evidence the Labour Court is well justified in making the impugned award. It may be that in the facts and circumstances of the case, the Labour Court felt that discretion has to be exercised in a particular manner by awarding back wages also to the workman. Evidently, none of the parties have concentrated on this aspect before the Labour Court and the Corporation is raising this question in particular before this Court. Having granted the main relief, the relief of back wages was granted while exercising power under Section 11-A of the ID Act. I do not think that in the normal circumstances that portion of the relief can be negatived by writ Court except otherwise the petitioner-Corporation established it so as to justify negativing a portion of the relief prayed for i.e., granting of back wages. Viewed from any angle, I do not find any illegality or legal infirmity in the impugned award made by the Labour Court. Except the above points, the respective parties have urged no other points. It is also made clear that the workman is entitled to receive the amount deposited towards back wages before the concerned Labour Court in this regard. Inasmuch as the writ petition is devoid of merits, the same is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.