Mahadeb Prasad Gupta And Anr. vs The State on 25 March, 1964

Orissa High Court
Mahadeb Prasad Gupta And Anr. vs The State on 25 March, 1964
Equivalent citations: AIR 1964 Ori 260, 1964 CriLJ 694, 1964 (9) FLR 229
Author: R Narasimham
Bench: R Narasimham


R.L. Narasimham, C.J.

1. This is a revision against the judgment of the Sub-divisional Magistrate of Bhadrak, convicting the petitioners under Section 31(2) of the Industrial Disputes Act for contravention of the provisions of Section 25F(b) of that Act and sentencing them to pay a fine of Rs. 50/-each; in default, to undergo simple imprisonment for one month each.

2. The case against the petitioners was started on the basis of a prosecution report submitted against them by the Assistant Labour Commissioner of Orissa (P. W. 1) to the effect that they being the employers of five workmen in Popsing Rice Mill, Charampa retrenched them without giving them the retrenchment benefits provided in Section 25F(b) of the Act. The complaint was actually filed by the Assistant Labour Commissioner and it was based on a detailed enquiry made by the District Labour Officer namely N. Sahoo (P. W. 6). Some of the employees who were so retrenched without being given retrenchment benefits were also examined as witnesses (P. Ws. 3, 4 and 5) in support of the prosecution case. The petitioners (who were represented by a legal practitioner) in their examination under Section 342 ” Cr. P. C. took the plea that these retrenched labourers did not put in a continuous service of 240 days in a calendar year and hence they were not entitled to any retrenchment benefits. No other defence plea was taken.

3. But during the hearing of this revision petition Mr. Kundu for the petitioners was permitted to raise some interesting questions of law arising out of the order of the lower Court.

4. Firstly Mr. Kundu contended that as admittedly the retrenched workers were employed by Popsing Rice Mill the petitioners could not be convicted unless the prosecution could further show that the petitioners were in any way concerned with the management of the said mill. This argument cannot prevail because, as already pointed out, the petitioners in their statement under Section 342 Cr. P. C. admitted that the retrenched persons were their workmen and the only point under challenge was whether they had worked for 240 days continually in a calendar year so as to entitle them to retrenchment benefits. In the complaint petition also it was shown that the Popsing Rice Mill was under the management of the two petitioners. It must therefore be taken as practically admitted that the retrenched workmen are the workmen of the petitioners’ rice mill and it is unnecessary for the prosecution to establish the exact jural relationship between the petitioners on the one hand and Popsing Rice Mill on the other. The petitioners can escape criminal liability only by showing that the offence was committed without their knowledge or consent, as required by Section 32 of the Industrial Disputes Act.

5. The second contention of Mr. Kundu which is the most important contention in this case is that whether the workers were not entitled to retrenchment benefits. Section 25F of the Act says that such benefits would be available only to workman who has been in continuous service for not less than one year under an employer. The expression ‘continuous service for one year’ has been defined in Section 25B as follows:

“For the purposes of Section 25F a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than 240 days shall be deemed to have completed one year of continuous service in the industry”.

Giving the natural meaning to these words, the obvious interpretation of this definition section is that the worker must (i) have been in employment for 12 calendar months and (2) have actually worked for not less that 240 days during the said 12 calendar months. Both the conditions recast be fulfilled. Hence if a particular workman is under, the employment of an employer for II months only even if he has actually worked for 240 days in all, during that period, he will not be entitled to the retrenchment benefits.

This is made clear in a recent judgment of the Supreme Court reported in Sur Enamel and Stamping Works Ltd. v. Workmen, AIR 1963 SC 1914. Mr. Kundu however, urged, relying on the facts as stated in Ext. 3, read with Ext. with 5, that these retrenched workers were not on duty during the whole of August, but as they were discharged only from 1-9-60 it must be held they were in service only for II months during the period commencing from 1-9-59 and ending on 31-8-1960. Hence Mr. Kundu contended, relying on the aforesaid decision of the Supreme Court, that they must be deemed to have been in service only for II months during the said period and as such they were not entitled to any retrenchment benefits. This argument makes a confusion between a period when a workman is not on duty and the period when he may not be in actual service. A person may be in service or employment without being on duty, for a specified period for special reasons. Here it is the admitted case of the petitioners themselves that all these workmen were discharged only on 1-9-60. It is true that the extract from the Attendances Register (Ext. 5) shows that none of these workers was on duty even on a single day in August 1960. But since the actual order of discharge is dated 1-9-60, it must, in the eye of law, be held that they were still in employment during the whole of August 1960, though they were not on duty. It is not disputed that the total number of days during which they were on duty during the calendar year commencing from 1-9-1960 and ending on 31-8-1960, was much above the limit of 240 days required by section 25B of the Industrial Disputes Act. It must therefore be held that all these retrenched workers were in one year’s continuous service and were therefore entitled to the retrenchment benefits.

6. The third point raised by Mr. Kundu was that the complaint filed by the Assistant Commissioner of Labour (P. W. 6) (Ext. 1) does not conform to the principles laid down in an earlier decision of the Privy Council in Rajammal v. Sabapathi Pillai, AIR 1945 PC 82 and referred to with approval in Jiwan Das v. Rabin Sen, AIR 1956 Cal 64. But he could not satisfy me as how the complaint did not conform to the principles laid down therein. The complaint and the enclosures sent with it to the Court would appear to contain full information about the names of workmen in respect of whom the offence was committed and other particulars which were in the mind of the Officer when he made the complaint. Moreover, the aforesaid Calcutta decision was given under the old Industrial Disputes Act, whereas that Act has been amended in 1956 in consequence of which Section 39 has been recast and the appropriate Government has been given the power to delegate its functions under the Act, to any other authority to be specified by notification.

Here the Assistant Labour Commissioner has enclosed along with his complaint the notification of the Government of Orissa in the Labour Department No. 11-280/59-9336/Lab. dated 1st October, 1959 which shows that the State Government in pursuance of Sub-section (i) of Section 34 read with, Clause (b) of Section 39 of the Industrial Disputes Act, have authorised the Assistant Labour Commissioner to make complaints in Courts in respect of offences punishable under the said Act. I am therefore satisfied that there is no illegality in the complaint and that cognizance of the offence was properly taken.

7. Lastly, Mr. Kundu contended that Section 33C of the Industrial Disputes Act provides a machinery for the recovery of money due from employer to the workmen and that unless the labour court after due enquiry under the provisions of that Section determines the amount due to the retrenched workman from the employer, the prosecution of the employer was misconceived. Mr. Kundu could not cite before me any authority to show that there could be no prosecution for contravention of Section 31 of the Act unless and until the determination of the exact amount due from the employer to the workmen is first made under the provisions of Section 33C. Moreover the petitioners also in their statement under Section 342 Cr, P. C. have not stated that” they had any doubts about the exact amount of retrenchment benefit due to the discharged workmen and that this was the reason for their failure to pay the same. On the other hand, as already stated, their whole case was that the workmen were not entitled to such benefits as they did not work for one continuous year.

This is a pure question of law depending on the interpretation of Section 25C of the Act on which the employers may, if necessary have to consult their own legal advisers. The attendance Register of workmen is with the employers and the employers therefore know clearly the salary of each workman, the number of days he was on duty, and the number of days on which he was absent without permission etc. Hence, though the workmen might have some doubts about the exact quantum of retrenchment benefit admissible, the employer cannot possibly have any such doubts, nor did they take any such plea before the lower Court. As mentioned already, the petitioners were represented by a legal practitioner who may be presumed to have known the type of defence that should be taken in cases of this kind. In any view of the case, I am not here concerned with ascertaining the exact amount of retrenchment benefits due to the retrenched workmen, but only with the question whether the employer has discharged them without giving them retrenchment benefits as required by Section 25F of the Industrial Disputes Act. That has been well established from the evidence on record and the papers filed in the case (Exts. 3 and 5); the latter document being the extract from the attendance Register showing the number of days on duty and the period of employment of the retrenched workmen in their establishment. I see therefore no reason to disturb the conviction and sentence and accordingly dismiss this revision petition. The sentence seems lenient.

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