JUDGMENT
S.P. Bharucha, J.
1. The petitioner was employed on 20th May 1976 by the Dean of the J.J. Group of Hospitals to work in its Neurology Department for a period of 28 days. On 9th July 1976 the Dean issued an order stating that the petitioner was continued in service pending further orders. On 16th June 1979 the Dean informed the petitioner that his “services are no longer required at this institution with immediate effect.”
2. The petitioner approached the Assistant Commissioner of Labour. On 22nd January 1981 he was informed that the Assistant Commissioner of Labour did not propose to intervene in the dispute and hence his case was treated as closed. On 27th February 1981 the petitioner made a further representation to the Commissioner of Labour. On 9th March 1981 he was informed, by the Assistant Commissioner of Labour that employees in the J.J. Group of Hospitals were governed by the Bombay Civil Service Rules and other conditions of service as applicable to Government servants; the petitioner’s employment was of a temporary nature and on an ad hoc basis as he had not been appointed through the Maharashtra Public Service Commission. The Assistant Commissioner of Labour stated that, therefore the petitioner’s request for admission of the dispute in conciliation could not be considered.
3. This petition prays that the respondents should be ordered to reinstate the petitioner in service with continuity of service, full back wages and other service benefits. It also prays that the order of the Assistant Commissioner of Labour should be quashed and he should be directed to proceed with the matter.
4. Mr. Daftary, learned counsel for the petitioner, submitted that the J.J.Group of Hospitals was an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947; that the petitioner was a workman within the meaning of Section 2(s) of the Act; that the order dated 16th June 1979 terminating the petitioner’s services was in reality an order of retrenchment under Section 2(oo) of the Act; that the requirements of Section 25F of the Act relating to retrenchment having, admittedly, not been complied with, the retrenchment was bad and the petitioner was entitled to reinstatement with continuity of service and back wages. In the alternative, Mr. Daftary submitted that the order of the Assistant Commissioner of Labour should be set aside and he should be directed to proceed with the matter.
5. In State of Bombay v. Hospital Mazdoor Sabha, 1960 1 LLJ. 251, the Supreme Court held the J.J. Group of Hospitals to be an industry within the meaning of the Industrial Disputes Act. It held that the termination of two ward servants in the hospital was a retrenchment to which the provisions of Section 25F applied. Since the requirements of Section 25F had not been complied with the two ward servants were entitled to a writ of mandamus directing the hospital to reinstate them in service.
The Supreme Court overruled this judgment in the Safdar Jung Hospitals case : 1970 (2) LLJ 266. However, in Bangalore Water Supply and Sewerage Board v. A. Rajappa, : 1978 (1) LLJ 349 the Supreme Court in terms rehabilitated the Hospital Mazdoor Sabha case.
The J.J. Group of Hospitals is, therefore, an industry within the meaning of the Act.
6. In Mohan Lal v. Bharat Electronics Ltd., 1981 II LLJ. 70, the Supreme Court was concerned with a case of an employee whose services had been terminated. The court proceeded upon the assumption that the employee was a temporary employee. It observed that a termination by the employer of the services of a workman for any reason whatsoever constituted retrenchment except in the cases excepted in the section itself. Where there was a termination of service for a reason other than the excepted categories there was retrenchment within the meaning of the word as defined in the Act. The employee before the Supreme Court was found to have satisfied the eligibility qualifications prescribed in Section 25F for claiming retrenchment compensation. The termination of his service constituted retrenchment. As the pre-condition for a valid retrenchment had not been satisfied, the termination of service was held to be ab initio void and the employee was deemed to be in continuous service.
7. In Writ Petition No. 1434 of 1981, Gulam Mohd. Gulam Mustafa Salod v. Union of India, decided on 26th July, 1985, Pratap J. was concerned with the case of a Government servant who had obtained an award from the Labour Court, The relief claimed in the petition before him was not for setting aside the award but for setting aside the order by which the services had been terminated The learned Judge held that it was not necessary to challenge the award and drive the Government servant back to the Labour Court when it was open to him to challenge directly by way of writ petition the order terminating his service.
8. Mr. Patil, learned Assistant Government Pleader, submitted that the petitioner had not satisfied the requirements of Section 25F in that he had not been in continuous service for not less than one year. He drew my attention to a statement annexed as an exhibit (Exhibit-2) to the affidavit of Dr. Shantaram Gopal Deodhare, the Dean of the J.J. Group of Hospitals, dated 20th June 1983. The statement shows that, excluding the earlier period of service, which is not material here, the petitioner was on duty between 1st December 1977 and 18th May 1979. In regard to the period 19th May 1979 to 16th June 1979, which is the date upon which the petitioner’s services were terminated, the statement shows the petitioner to have been absent and remarks that payment was made to him from 1st May 1979 to 31st May 1979 “inadvertently”. In Mr. Patil’s submission, therefore, there had been no continuous service for not less than one year.
9. Section 25B of the Act defines continuous service, the relevant portion of which is Sub-section (1), which reads thus:-
Section 23B “Definition of continuous service-For the purposes of this Chapter,-
(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman.”
If, the petitioner had not remained absent between 19th May 1979 and 16th June 1979 there is no doubt that he would have been in continuous service for not less than one year. Now in regard to this period between 19th May 1979 and 16th June 1979 the petitioner has in his affidavit in rejoinder annexed as an exhibit (Exhibit-D) the photocopy of a certificate issued and signed by the Superintendent of the J.J. Group of Hospitals. The certificate is dated 16th June 1979. It bears a Serial No. and Out-patient Department No. so that its genuineness was easily verifiable. It certifies that the petitioner was treated as an out-patient in the hospital from 19th May 1979 till 16th June 1979, the date of the certificate, and states that he was then fit for duty. The affidavit of the Dean in sur-rejoinder does not so much as refer to the certificate. Since it does not, the certificate must be accepted as correct. There is, therefore, the evidence of the Superintendent of the J.J. Group of Hospitals itself that between 19th May 1979 and 16th June 1979 the petitioner was sick. Section 25B(1) provides that a workman shall be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness. Hence, the petitioner must be held to have been in continuous service for not less than one year prior to 16th June 1979 when his services were sought to be terminated and Section 25F of the Act to have been attracted. Admittedly, its requirements were not satisfied. It must, therefore, be held that the termination of the petitioner’s service is bad in law and he is continuing in service.
10. Even assuming that the certificate dated 16th June 1979 is not accepted and the petitioner is assumed to have been absent without leave, the judgment of Pendse J. in Ramasamuz Upadhyaya v. Vinubhai M. Mitra, 1982 II L.L.J. 186, holds that absence without leave is not sufficient to deprive a workman of retrenchment compensation. In coming to this conclusion the learned Judge relied upon the judgment of the Supreme Court in Jeewanlal Ltd v. Its Workman, 1961 I LLJ. 517, and the judgment of a Division Bench of this court in Jairam Sonu Shogule v. New India Rayon Mill Company Ltd. 1958 I LLJ. 28.
In the premises, the petition succeeds. Respondents Nos. 1 and 3 are directed to reinstate the petitioner in service with continuity of service, to pay him full back wages and give him all other benefits.
Respondents Nos. 1 and 3 shall pay to the petitioner the costs of the petition.
Rule accordingly.
