JUDGMENT
Mukul Mudgal, J.
1. This writ petition challenges the order dated 9th August, 2002 passed in I.D. No. 15/99. By the impugned order, the Labour Court found that the workman had completed 240 days of service and that the provisions of Section 25F of the Industrial Disputes Act have not been complied with. The reinstatement was granted accordingly.
2. Learned Counsel for the petitioner Ms. Tuli has submitted that the said finding is contrary to the provisions of law laid down by the Punjab & Haryana High Court in Malkiat Singh v. Labour Commissioner, U.T. Chandigarh and Anr., 1996(4) SLR 333. Learned Counsel for the petitioner has referred to the following finding from the above judgment :
“…..From averments made in the written statement, it is clear that the petitioner was not paid the wages for Sundays and other holidays. Therefore, the Sundays and other holidays for which no wages have been paid, cannot he counted while computing the continuous service of the petitioner. It has been held in Women of American Express International Banking Corporation v. Management of American Express International Banking Corporation, that:
‘The expression ‘actually worked under the employer’ cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of Statute, Standing Orders, etc. Thus, Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workman could be said to have actually worked’.”
3. This position has been referred to by the Supreme Court in Union of India v. Rajinder Kumar Sharma, , as follows :
“We are of the opinion that the matter should go back to the Tribunal for a decision afresh. Neither the decision of this Court in Daily Rated Casual Labour nor the proceedings of the P & T Department issued on February 10, 1988, say that the casual labourers are entitled to be paid even on the days they do not work. The approach of the Tribunal that since the aforesaid proceedings of the P & T Department does not provide otherwise, the respondent is entitled to be paid even for the days he did not work (i.e. Saturdays, Sundays and Gazetted Holidays) does not appear to be sound.
Thus, it is clear that the holidays, i.e. Sundays and other gazetted holidays during which no wages have been paid to the workman cannot be counted for the purpose of determining whether the workman worked continuously for a period of 240 days. If the holidays for which no wages have been paid by the employer are excluded, the working days of the petitioner fall short of 200 days. “Thus, it is clear that the petitioner has not worked for a period of 240 days in a year, before the order of termination.”
4. With respect I find myself totally unable to agree with the conclusion arrived at by the learned single Judge of Punjab and Haryana High Court. The above judgment notices the statement of law by the Hon’ble Supreme Court in American Express case (supra) where it is clearly stipulated that Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workman is said to have worked. This observation of the Hon’ble Supreme Court in American Express International Banking Corporation’s case (supra) was made in the context of calculation of 240 days. The Hon’ble Supreme Court in Union of India v. Rajinder Kumar Sharma’s case (supra) made a finding in the context of disentitlement of payment of casual labourers for Sundays and holidays. This entitlement of payment of casual labour for holidays cannot have any bearing on the context of calculation of the numbers of the days put in service by an employee. Accordingly, I am of the view that in view of the categorical position of law clearly stated by the Hon’ble Supreme Court in American Express’s case (supra), there is no merit in the writ petition. In this view finding of 240 days working of the respondent No. 1 by including the Sundays and holidays cannot be said to be amenable to interference under Article 226 of the Constitution in view of the position of law laid down in American Express case (supra). It is not in dispute that Section 25F of the Act was not complied with. The impugned order thus does not warrant interference. The writ petition is accordingly dismissed in liming.