IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 10146 of 2006.
Date of Decision : February 18, 2009.
Panipat Co-operative Sugar Mills Limited, Panipat. ...... Petitioner.
Versus.
The Presiding Officer, Industrial Tribunal-cum-
Labour Court, Panipat, and another. ...... Respondents.
CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present: Mr. Kulvir Narwal, Advocate,
for the petitioner.
Ms. Abha Rathore, Advocate,
for the respondent No. 2.
AUGUSTINE GEORGE MASIH, J.
In the present writ petition, the challenge is to the award dated
01.02.2006 (Annexure-P-3), passed by the Industrial Tribunal-cum-Labour
Court, Panipat, vide which the reference has been answered in favour of the
workman holding him entitled to reinstatement with continuity of service
and full back wages from the date of demand notice i.e. 14.05.1998.
Counsel for the petitioner contends that the workman has not
been able to prove that he has completed 240 days in the 12 preceding
months from the date of his termination and the Labour Court has wrongly
included Sundays to hold him entitled to the benefit of Section 25-F of the
Industrial Disputes Act, 1947. It is not in dispute that the workman has
completed 216 days with the petitioner-management and the relevant
C.W.P. No. 10146 of 2006. -2-
records were produced by the petitioner-management which has not been
disputed by the respondent-workman. Since the respondent-workman has
worked for only 216 days, therefore, the award which has been passed in
favour of the respondent-workman cannot be sustained and deserves to be set
aside.
He further contended that the respondent-workman was
appointed on daily wage basis and therefore, did not have any right to the
post. He further contended that the respondent-workman had been appointed
as and when the requirement arose and therefore, cannot be said to be
regularly appointed.
On the other hand, counsel for the respondent-workman
contended that the actual working days of the workman comes to 216 days,
however, Sundays and other gazetted holidays are required to be taken into
account while counting, and to come to a conclusion whether the respondent-
workman has completed 240 days in the 12 preceding months as has been
held by Hon’ble the Supreme Court in the case of Workman of American
Express International Banking Corporation Versus Management of
American Express International Banking Corporation, A.I.R. S.C. 1986.
The present case is covered against the petitioner by the Division Bench of
this Court in the case of Executive Engineer, P.W.D., Public Health
Division, Narnaul Versus Rajbir Singh and another, (C.W.P. No. 6183 of
2004), decided on 24.08.2005.
I have heard counsel for the parties and have gone through the
records of the case. The question which needs to be decided in the present
case is whether Sundays/rest days are to be counted while calculating
C.W.P. No. 10146 of 2006. -3-
whether the respondent-workman has completed 240 days in the 12
preceding months from the date of his termination.
Counsel for the petitioner has basically tried to distinguish the
Judgment of Division Bench of this Court in Executive Engineer, P.W.D.,
Public Health Division, Narnaul’s case (supra), on the ground that the said
case was one where the workman was appointed on monthly salary and
therefore, though this Court has basically relied on the Judgment of Hon’ble
the Supreme Court in Workman of American Express International
Banking Corporation Versus Management of American Express
International Banking Corporation’s (supra), but has taken into
consideration the Minimum Wages Act, 1948, and the Punjab Minimum
Wages Rules, 1950, and granted the benefit to the workman holding him
entitled to paid rest days while calculating the number of working days in
terms of Section 25-B of the Industrial Disputes Act. He submitted that the
present case is one where the workman was appointed on daily wage basis
and was paid as per the days he worked. He further relied upon the proviso
to Rule 23 (4) of the Punjab Minimum Wages Rules, 1950, which has been
relied upon by the Division Bench of this Court to state that where the
minimum daily rate of wages of the employee as notified under the Minimum
Wages Act, has been worked out by dividing the minimum monthly rate of
wages by twenty six or where the actual daily rate of wages of the employee
has been worked out by dividing the monthly rate of wages by twenty six
and such actual daily rate of wages is not less than the notified minimum
daily rate of wages of the employee, no wages for the rest day shall be
payable. He on this basis contends that since the minimum daily rate of
wages was based on this principle, the workman was not entitled to payment
C.W.P. No. 10146 of 2006. -4-
of rest day, and therefore, rest day cannot be termed as paid rest day which
could be included while computing 240 days under Section 25-B of the
Industrial Disputes Act. In any case, he submitted that no evidence has been
led before the Labour Court that minimum wages were not paid nor has it
been said that he was being given the benefit of rest days and was paid for
the rest days and it was a question of fact which can now not be agitated
before this Court. He further contended that in view of there being no
evidence to this effect before the Labour Court, the conclusion derived by
the Labour Court was not sustainable.
The contentions as raised by counsel for the petitioner cannot be
accepted. It is an admitted position before the Labour Court by the petitioner
and has come in the statement of Chander Parkash, Time Keeper, who had
appeared as W.W.3 and had brought the summoned records which showed
and proved the working days details which has been placed on record as
Ex.W.3/A. He has stated in his statement that the weekly rests were not
included nor other gazetted holidays were included in the working days
details given in Ex. W.3/A, which shows that in the 12 preceding months
from the date of termination of the respondent-workman, the workman had
worked for 216 days continuously. It is further conceded position by counsel
for the petitioner that if rests days are included, the respondent-workman
would complete more than 240 days. It is also an admitted position in the
statement given by Radhu Ram, Clerk of the Sugarmill, Panipat, who
appeared as M.W.2 who has stated that the respondent-workman was not
given any notice, pay in lieu of notice and retrenchment compensation before
termination of his services.
C.W.P. No. 10146 of 2006. -5-
That being the position, the submission of counsel for the
petitioner cannot be accepted in the light of the Judgment passed by the
Division Bench of this Court in Executive Engineer, P.W.D., Public Health
Division, Narnaul Versus Rajbir Singh and another’s case (supra), and
Hon’ble the Supreme Court in Workman of American Express
International Banking Corporation Versus Management of American
Express International Banking Corporation’s case (supra). There can be
no conclusion except that the rest days would be counted for the purpose of
computing 240 days in 12 calendar months preceding his retrenchment. The
Division Bench of this Court relying on the observations of Hon’ble the
Supreme Court while considering the provisions of Payment of Wages Act,
has held as follows :-
” It is the submission of learned counsel for the respondent-
workman, that even if it is taken as correct, that the respondent-
workman rendered 26 days service in every month, during the 8
months, during which he is acknowledged to have rendered
service under the petitioner-management, he must be deemed to
have been paid wages for the four compulsory rest days falling
in each of the said months. On the basis of the instant
submissions learned counsel for the respondents-workman
wishes to conclude that the workman must be deemed to have
rendered 30 days of service in each of the 8 months during
which he is stated to have rendered service under the petitioner-
management.
We have perused the Rule 23(4) of the Punjab
Minimum Wages Rules, 1950. We are satisfied that in spite of
C.W.P. No. 10146 of 2006. -6-the fact that the respondent-workman rendered only 26 days
service in the 8 calendar months depicted in the compilation
extracted above, he was liable to be paid for four rest days in
each of the said months, under Rule 23(4) (i.e. 1 day for
rendering service for 5 days), subject to the condition that the
respondent-workman was employed in a “Scheduled
Employment”. In order to substantiate that the respondent-
workman was engaged in a scheduled employment, our
attention has been invited to the Schedule appended to the
Rules, wherein, the Public Works Department (Public Health) is
included. As such, we have no hesitation in arriving at the
conclusion that the respondent-workman was paid and / or
liable to be paid for rest days during the months he has
rendered service with the petitioners-management.
The question that has to be adjudication upon now
is whether the days on which, the respondent-workman did not
render service but was paid for, have to be included while
computing 240 days, under Section 25-B of the Act. In so far as
the instant issue is concerned, the matter has been adjudicated
upon by the Supreme Court in Workman of American Express
International Banking Corporation Versus Management of
American Express International Banking Corporation, A.I.R.
1996 Supreme Court 458, wherein it had been held as under :-
” Section 25-F of the Industrial Disputes Act is plainly
intended to give relief to retrenched workmen. The
qualification for relief under S.25-F is that he should be a
C.W.P. No. 10146 of 2006. -7-workman employed in an industry and has been in
continuous service for not less than one year under an
employer. What is continuous service has been defined
and explained in S. 25-F of the Industrial Disputes Act. In
the present case, the provisions which is of relevance is
S.25-B(2)(a)(ii) which to the extent that it concerns us,
provides that a workman who is not in continuous service
for a period of one year shall be deemed to be in
continuous service for a period of one year if the workman,
during a period of twelve calendar months preceding the
date with reference to which the calculation is to be made,
has actually worked under the employer for not less than
240 days. The expression which we are required to
construe is ‘actually worked under the employer’. The
expression, according to us, 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
has been paid wages either under express or implied
contract of service or by compulsion of statute, standing
orders, etc. The learned counsel for the Management
would urge that only those days which are mentioned in
the Explanation to S. 25-B(2) should be taken into account
for the purpose of calculating the number of days on which
the workman had actually worked though he had not so
worked and no other days. We do not think that we are
C.W.P. No. 10146 of 2006. -8-entitled to so constrain the construction of the expression
‘actually worked under the employer’. The explanation is
only clarificatory, as all explanations are, and cannot be
used to limit the expanse of the main provision. If the
expressions ‘actually worked under the employer’ is
capable of comprehending the days during which the
workman was in employment and was paid wages – and we
see no impediment to so construe the expression- there is
no reason why the expression should be limited by the
explanation. To give it any other meaning then what we
have done would bring the object of S. 25-F very close to
frustration.”
In view of the above, we have no hesitation in arriving at
the conclusion that the number of rest days for which the
employee had been paid, is liable to be included in the number
of working days while calculating 240 days service in terms of
Section 25-B of the Act. If that is to be done the respondent-
workman is entitled to a paid rest day after completing five
working days. Since, it is not a matter of dispute, on the basis
of compilation extracted above, that the respondent-workman
rendered service for 208 days, he would be entitled to 35 rest
days as well as wages for the same. It is, therefore, clear that
the respondent-workman has been paid for 208+35 = 243 days
in the 12 calendar months, preceding his retrenchment. In view
of the decision rendered by the Supreme Court in Workman
American Express International Banking Corporation Versus
C.W.P. No. 10146 of 2006. -9-Management of American Express International Banking
Corporation’s case (supra), we are satisfied that the
respondent-workman fulfilled the minimum mandatory
requirement of 240 days in the 12 calendar months preceding
his retrenchment, and as such, was entitled to all the benefits of
retrenchment delineated under Section 25-F of the Act. Since
the petitioner was neither issued any notice before his
retrenchment nor paid compensation in lieu of the notice
period, and further more, since he was not paid any
retrenchment compensation under Section 25-F of the Act, we
are satisfied, that the termination of the services of the
respondent-workman in October, 1993 was in clear violation of
the mandate of Section 25-F of the Act.
In view of the above, we find merit in the contentions
advanced by the learned counsel for the respondent-workman,
and no infirmity in the award of the Labour Court.”
In view of the authoritative decision of this Court, the present
case is fully covered by abovementioned Division Bench Judgment of this
Court and I see no reason for taking a different view than has been held by
this Court. The distinction tried to be drawn by counsel by the petitioner
does not have any bearing in the present case in view of Rule 23 (4) of the
Punjab Minimum Wages Rules, 1950, as interpreted by this Court. To this
extent that the workman has completed 240 days in the last preceding 12
months from the date of his termination is upheld and so is it upheld that the
provisions of Section 25-F of the Industrial Disputes having not been
C.W.P. No. 10146 of 2006. -10-
complied with, the workman is entitled to reinstatement in service with
continuity thereof.
In any case a finding has been returned by the Labour Court that
the provisions of Section 25-G of the Industrial Disputes Act has been
violated as the principle of last come first go has not been complied with by
the petitioner while terminating the services of the respondent-workman.
This finding has been recorded by the Labour Court on the basis of the
evidence which has come in the form of statement of Om Parkash workman
who appeared as W.W.1 wherein he has stated that one Shri Harbans Lal
who is junior to him is still working with the petitioner at the time of his
termination. Ram Mehar who appeared as M.W.1 has not denied that Shri
Harbans Lal who is an ex-serviceman, and is junior to the respondent-
workman is working as a Security Guard. He has not denied the suggestion
made to him that the said Harbans Lal is junior to the respondent-workman.
In view of the violation of provisions of Section 25-G of the Industrial
Disputes Act, the respondent-workman would be entitled to reinstatement
with continuity of service irrespective of the fact whether the respondent-
workman has completed 240 days in the 12 preceding months from the date
of his termination. That being so, the award passed by the Labour Court,
cannot be set aside.
A perusal of the award also does not indicate that the
respondent-workman had not been gainfully employed after his termination
of service. Counsel for the petitioner further contends that the onus of
proving that the workman has not been gainfully employed from the date of
his termination is on the workman himself. He relies upon the Judgment of
Hon’ble the Supreme Court in the case of R.B.I. Versus S. Mani, 2005 (5)
C.W.P. No. 10146 of 2006. -11-
S.C.C. 100. A perusal of the demand notice in the present case, which has
been appended as Annexure-P-1, clearly indicates that the respondent-
workman had stated in para-7 thereof that the applicant tried his best to get
the job again but all in vain.
In the present case an affidavit dated 12.08.2006 has been filed
by the workman-respondent No. 2 stating there in para-5 that he is not
gainfully employed in any factory or establishment. He has kept 2/3
buffaloes and sustains himself and his family by selling milk. The said
assertion in the affidavit by the respondent-workman has not been
controverted by the petitioner, therefore, the impugned award is modified to
the extent that the workman would be entitled to 40% back wages from the
date of demand notice i.e. 14.05.1998 instead of full back wages as granted
by the Labour Court, vide impugned award dated 01.02.2006
(Annexure-P-3).
The present writ petition is partly allowed in above terms.
(AUGUSTINE GEORGE MASIH)
JUDGE
February 18, 2009.
sjks.