{"id":221972,"date":"2011-05-10T00:00:00","date_gmt":"2011-05-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/medical-vs-dashrathsinh-on-10-may-2011"},"modified":"2016-07-27T14:50:41","modified_gmt":"2016-07-27T09:20:41","slug":"medical-vs-dashrathsinh-on-10-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/medical-vs-dashrathsinh-on-10-may-2011","title":{"rendered":"Medical vs Dashrathsinh on 10 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Medical vs Dashrathsinh on 10 May, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/4258\/2011\t 55\/ 55\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4258 of 2011\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nMEDICAL\nOFFICER - Petitioner(s)\n \n\nVersus\n \n\nDASHRATHSINH\nGAJUBHA ZALA - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nDIPAK C RAVAL for\nPetitioner(s) : 1, \nNone for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 10\/05\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
Heard
\n\tlearned Advocate Mr. Dipak C. Raval for petitioner. He submitted
\n\tthat respondent was appointed as daily wager driver in Primary
\n\tHealth Center when there was additional work available. Respondent
\n\tworkman was relieved from work as work was not available. Therefore,
\n\trespondent raised an industrial dispute under machinery of
\n\tIndustrial Disputes Act, 1947 which was referred to for adjudication
\n\tto Labour Court, Surendranagar, registered as Reference (LCS) No. 24
\n\tof 2004. Statement of claim was filed by workman against which
\n\twritten statement was filed by petitioner wherein it was stated that
\n\tappointment of respondent was casual in nature and respondent was
\n\tnot appointed through any selection procedure and respondent also
\n\tnot supplied his consent letter to work as and when work was
\n\tavailable. Labour Court, Surendranagar passed award on 24th
\n\tMarch, 2010 and granted reinstatement. According to learned advocate
\n\tMr. Raval for petitioner, Medical Officer, Primary Health Center,
\n\tSurendranagar is not having any authority to appoint or terminate
\n\tany person and award itself is passed without joining necessary
\n\tparties and, therefore, award is challenged in present petition.
\n\tPetitioner has annexed award passed by labour court, Surendranagar
\n\tpage 10 Annexure A dated 24.3.2010. Labour Court has granted relief
\n\tof reinstatement in favour of respondent as daily wager driver, to
\n\toriginal post without back wages of interim period with costs of
\n\tRs.500.00. Annexure B page 17 is copy of statement of claim produced
\n\tby petitioner along with present petition, according to which,
\n\trespondent workman was working as driver in establishment of
\n\tpetitioner since last two years and was receiving daily wage of
\n\tRs.85.20 ps.  According to workman, his presence was being marked in
\n\tmuster roll and salary was being paid while obtaining signature in
\n\tpay register and was not provided pay slip, identity card etc.
\n\tAccording to workman, he has completed 240 days continuous service
\n\tin each year when he was working with petitioner. His service was
\n\tterminated on 26th June, 2002 and thereafter, new driver
\n\thas been engaged by petitioner. According to workman, at present,
\n\tpetitioner is having vehicle and recruiting fresh driver but on that
\n\toccasion, no offer of re-employment has been made by petitioner to
\n\trespondent workman. Demand notice was served by respondent workman
\n\tto petitioner but no reply was given by petitioner, therefore,
\n\taccording to workman, his services were terminated by petitioner
\n\testablishment in breach of section 25F, G and H of ID Act, 1947.\n<\/p>\n
Against
\n\tthat, written statement was filed by petitioner which is annexed at
\n\tannexure B colly to this petition by petitioner. According to stand
\n\ttaken by petitioner before labour court that they are functioning
\n\tsubject to the rules and regulations of Government and instructions
\n\treceived from Government from time to time and in view of such
\n\tfunction, whoever needy patients comes for primary treatment, they
\n\tare provided treatment without taking any charge whatsoever and as
\n\tper requirement of patients, even medicines are also being provided,
\n\tfree of charge. It was also submitted by petitioner establishment
\n\tbefore labour court that their establishment is run from grant of
\n\tGovernment and therein, only persons selected by District Panchayat
\n\tService Selection Board are being recruited and without following
\n\tany such procedure, respondent workman was appointed as daily
\n\twager.Respondent workman was intermittently working as daily wager
\n\tdriver as and when there is necessity. His work was not continuous
\n\tand jeep which was being driven by workman is at present not in
\n\tworking condition and, therefore, in such circumstances, question of
\n\treinstating workman in service is not arising. Industrial Disputes
\n\tAct is not applicable to petitioner establishment, therefore,workman
\n\tis not entitled to get any relief from labour court. It was also
\n\tcase of petitioner before labour court that petitioner is not having
\n\tjurisdiction or power to appoint any person without following
\n\tprocess of recruitment rules and, therefore, reference is required
\n\tto be dismissed. One defence is raised by petitioner that one offer
\n\twas made by petitioner establishment that if respondent workman is
\n\twilling to perform duties as daily wager driver and makes demand to
\n\tthat effect in writing before petitioner, then, first preference
\n\twill be given to petitioner. Learned<\/p>\n
Advocate
\n\tMr. Dipak C. Raval for petitioner submitted that in response to
\n\taforesaid offer made by petitioner, no consent letter was given or
\n\tsupplied by respondent workman to petitioner and in case after
\n\treceiving such consent letter from workman, petitioner was prepared
\n\tto provide work to respondent workman. Thereafter, certified copy of
\n\taward is placed on record. Except that, no other documents have been
\n\tannexed by petitioner in present petition.\n<\/p>\n
Learned
\n\tAdvocate Mr. Raval for petitioner raised contention before this
\n\tcourt that in such circumstances, labour court ought not to have
\n\tgranted relief to a daily wager driver whose services were
\n\tterminated for want of work and vehicle which was entrusted to
\n\trespondent workman was not in working condition and workman was not
\n\trecruited after following due process of recruitment rules. Then, he
\n\trelied upon decision of apex court in case of  Incharge Officer
\n\tand another versus Shankar Shetty (2010) 9 SCC 126 and submitted
\n\tthat labour court ought to have awarded lumpsum compensation in lieu
\n\tof reinstatement as daily wager driver. Learned Advocate Mr. Raval
\n\tfor petitioner emphasized that offer made by petitioner in written
\n\tstatement was not accepted by workman and, therefore, now,
\n\treinstatement ought not to have been granted by labour court.
\n\tAccording to his submission, this Primary Health Center is run by
\n\tSurendranagar District Panchayat on the basis of grant received from
\n\tState Government and therefore, petitioner establishment, Primary
\n\tHealth Center is not having any legal entity but it is depending
\n\tupon grant received from either Surendranagar District Panchayat or
\n\tfrom State Government and, therefore, labour court ought not to have
\n\tgranted relief of reinstatement in favour of respondent workman.
\n\tExcept that, no other submission is made by learned advocate
\n\tMr.Raval before this Court and no other decision has been cited by
\n\thim before this court.\n<\/p>\n
I
\n\thave considered submissions made by learned advocate MR. Raval
\n\tbefore this court. I have also perused impugned award made by labour
\n\tcourt, Surendranagar. Industrial dispute has been referred to for
\n\tadjudication by appropriate Government on 23rd April,
\n\t2004. Statement of claim was filed by workman at Exh. 5 and his
\n\tservice was terminated on 26th June, 2002 and before
\n\tthat, he remained in continuous service with petitioner
\n\testablishment as daily wager driver and completed continuous service
\n\tof 240 days  in a year. According to workman, after his termination,
\n\tnew driver has been appointed on daily wage basis by petitioner and
\n\tthereby petitioner establishment committed breach of section 25H of
\n\tID Act, 1947 since no offer was made by petitioner to respondent
\n\tworkman at that occasion for such work. Written statement was filed
\n\tby petitioner before labour court at Exh. 6 where similar
\n\tcontentions have been raised by petitioner as discussed above by
\n\tthis court. Before labour court, vide list Exh. 11, petitioner
\n\testablishment has produced three document, Exh. 12, details of
\n\tmuster of respondent workman while working as daily wager driver
\n\tfrom June, 2000 to June, 2002 produced on record. Exh. 13 produced
\n\tby petitioner before labour court is circular of Government dated
\n\t10.2.2006 to stop recruitment of part time employees. Exh. 14
\n\tproduced by petitioner before labour court is circular of District
\n\tPanchayat dated 31.5.2006 to stop recruitment of part time
\n\temployees. Workman was examined at Exh. 9 and he was cross examined
\n\tby advocate for petitioner establishment. At Exh. 15 before labour
\n\tcourt, affidavit in form of evidence was filed by witness for
\n\tpetitioner Shri Mohitbhai Padamchand Gandhi, Medical Officer who was
\n\tcross examined by advocate for workman. Thereafter, matter was heard
\n\tby labour court and considering pleadings and documents produced by
\n\tboth parties, in paragraph 8, issues have been framed by labour
\n\tcourt and answer is given in said paragraph by labour court. Labour
\n\tCourt has considered that respondent workman has worked with
\n\tpetitioner establishment for about two years as daily wager driver
\n\tand as he was daily wager, therefore, his services were terminated
\n\tby petitioner establishment because he was daily wager
\n\tdriver and respondent workman was receiving daily wage of
\n\tRs.85.20 ps.Contention was raised by petitioner establishment before
\n\tlabour court that respondent workman has not been selected through
\n\tDistrict Panchayat Service Selection Board after interview and jeep
\n\twhich he was driving is not in working condition, therefore,
\n\tquestion of reinstating him in service is not arising. Considering
\n\tthis contention raised on behalf of petitioner establishment, labour
\n\tcourt has considered oral evidence of respondent workman at Exh. 9
\n\twhere it was stated by him in his cross examination that he remained
\n\tin service upto 1.6.2002 and thereafter, as vehicle had not been in
\n\tworking condition, he was retrenched. While considering this, labour
\n\tcourt also considered statement made by witness for petitioner
\n\testablishment at Exh. 15 where in cross examination, it was stated
\n\tby him that there are two vehicles in establishment and in respect
\n\tof vehicle which is in running condition, regular appointment has
\n\tnot been made and as and when driver required, person having
\n\tknowledge of driving is being engaged. Further, it has been stated
\n\tby said witness on behalf of petitioner that for want of contact of
\n\trespondent workman, he has not been called as driver. In light of
\n\tsuch contention raised by petitioner establishment, labour court has
\n\tconsidered that complaint was made by respondent workman before
\n\tAssistant Labour Commissioner on 24.2.2002 and prior to that, on
\n\t18.1.2002, demand was made by him for reinstating him in service as
\n\thas been alleged in letter of complaint and therefore, it cannot be
\n\tbelieved that respondent workman could not be contacted. Thereafter,
\n\t labour court has considered statement at Exh. 12 showing details of
\n\tdays on which workman has performed duties and as per that statement
\n\tat Exh. 12, workman has completed 240 days service including weekly
\n\toff, public holidays within 12 months preceding date of termination
\n\tand as per section 2(s) of ID Act, 1947, even rojamdar employee also
\n\tcan be considered as workman and termination of service of
\n\trespondent workman is retrenchment as per section 2(oo) of ID Act,
\n\t1947 and as workman has worked for more than 240 days within 12
\n\tmonths preceding date of termination, as per section 25F of ID Act,
\n\t1947, workman is entitled to have notice or notice pay in lieu
\n\tthereof and retrenchment compensation but workman has not been
\n\tserved with any notice and was not given notice pay in lieu thereof
\n\tas well as retrenchment compensation also not paid to him and
\n\tthereby petitioner has committed breach of sec. 25F of ID Act, 1947.
\n\tThereafter, labour court has considered that after termination of
\n\tservice of respondent workman, no any workman or employee has been
\n\tappointed by way of permanent appointment and has recruited other
\n\tdriver as daily wager and thus it is clear that work which was being
\n\tperformed by respondent workman has not been stopped and
\n\tsubsequently appointment has been made and therefore, there is
\n\tbreach of section 25F of ID Act, 1947. It is necessary to note that
\n\tbeing independent provisions of section 25H of ID Act, 1947, as and
\n\twhen in same category if new employee is recruited or engaged by
\n\temployer, at that occasion, at relevant time, it is legal obligation
\n\tupon employer to first offer re-employment to workman whose service
\n\thas earlier been terminated but that has not been done by petitioner
\n\tand that has also not been proved by petitioner before labour court
\n\tand, therefore, labour court has come to conclusion that there is
\n\tbreach of section   25F and 25H of ID Act, 1947 and therefore, as
\n\tper such observations, labour court has held that service of
\n\trespondent workman was illegally terminated in breach of provisions
\n\tof ID Act, 1947 and accordingly answered issue no.1 in affirmative,
\n\tas per decision of apex court in case of Mohan
\n\tLal v. Bharat Electronics Ltd. Reported<\/a> in AIR 1981 SC 1253 = (1981)
\n\t3 SCC 225.\n<\/p>\n
Before
\n\tlabour court, on behalf of petitioner establishment, one decision of
\n\tApex  Court in case of Secretary, State of Karnataka
\n\tand others versus Uma Devi and others reported in 2006(4) SCC page 1
\n\twas cited. Labour court has distinguished said decision of Uma Devi
\n\t(supra) on ground that this decision is not applicable in facts of
\n\tthis case because there is no demand made by workman to make him
\n\tpermanent and, therefore, aforesaid decision of apex court in case
\n\tof Uma Devi is not applicable to facts of present case. Labour Court
\n\thas observed that looking to facts and circumstances of case, at
\n\tpresent there is need of daily wager driver and in such
\n\tcircumstances also, said decision is not applicable as it is not in
\n\tconsonance with facts of this case and at present also, petitioner
\n\tis taking service of daily wager driver and, therefore, respondent
\n\tworkman should be given such opportunity and, , it has been held by
\n\tlabour court that workman is entitled for getting relief of
\n\treinstatement. For denying back wages of  interim period, labour
\n\tcourt has considered decision of apex court reported in 2003-II-LLJ
\n\tpage 176 in case of Ramashraysingh versus Rambaksh Singh; JT 2005(6)
\n\tSCC PAGE 137 in  case OF General Manager, Haryana Roadways versus
\n\tRudhan Singh; 2005 (6) SCC page 36 in case of APSRTC versus Abdul
\n\tKarim; 2005 AIR SCW 6042 in case of UPSRTC versus Mahendranath
\n\tTiwari and another and 2005 AIR SCW 6314 in case of UP State Branch
\n\tWare Corporation versus Uday Narayan Pandya and considering
\n\tprinciples laid down in aforesaid decisions of Hon’ble apex court,
\n\tlabour court has held that workman is not becoming automatically
\n\tentitled to receive back wages but that aspect has to be determined
\n\tby exercising discretion after taking into consideration facts and
\n\tcircumstances of each case and not mechanically. Considering facts
\n\tand circumstances of case and principles laid down by apex court in
\n\taforesaid decision, labour court has denied full back wages of
\n\tinterim period and answered issue no.2 partly in affirmative and
\n\tmade award of reinstatement on original post of rojamdar driver
\n\twithout back wages for interim period with costs of Rs.500.00 to be
\n\tpaid to workman by petitioner establishment which is under challenge
\n\tin this petition.\n<\/p>\n
Question
\n\tof law which has been raised by learned advocate Mr. Dipak C. Raval
\n\ton behalf of petitioner is that respondent is not covered by section
\n\t25F of ID Act, 1947 because he was daily wager. This aspect has been
\n\tconsidered by apex court in case of Rattan Singh versus Union of
\n\tIndia and another, (1997) 11
\n\tSCC 396 wherein apex court has considered applicability of sec. 25F
\n\tand 25B of ID Act and held that it is applicable to termination of
\n\teven a daily rated workman who had continuously served for requisite
\n\tstatutory minimum period in a year. Relevant paragraph 3 of said
\n\tdecision is quoted as under:\n<\/p>\n
\t“3.\tWe
\n\tfind merit in the said submission of Shri Ashri. From the dates
\n\tmentioned in the judgment of the first appellate court dated
\n\t22.1.1985, it appears that the appellant had continuously worked for
\n\tmore than 240 days in a year. Since he was a workman, he was
\n\tentitled to the protection of section 25F of the Act and the said
\n\tprotection could not be denied to him on the ground that he was a
\n\tdaily rated worker. It is not the case of the respondents that the
\n\tprovisions of section 25F of the Act were complied with while
\n\tterminating the services of
\n\tthe appellants. In these circumstances, the termination of services
\n\tof the appellant cannot be upheld and has to be set aside. The
\n\tservices of the appellant
\n\twere terminated in the year 1976. Nearly 20 years have elapsed since
\n\tthen. In these circumstances, we are not inclined to direct
\n\treinstatement of the appellant. But having regard to the facts and
\n\tcircumstances of the case, we direct that a consolidated sum of
\n\tRs.25,000 be paid to the appellant in lieu of compensation for back
\n\twages as well as reinstatement. This amount is being paid in full
\n\tand final settlement of all the claims of the appellant. The said
\n\tamount shall be paid within two months. The appeal is disposed of
\n\taccordingly. No costs.”\n<\/p>\n
In
\n\tcase of Himanshu Kumar Vidyarthi and others versus State of Bihar
\n\tand others, reported in (1997) 4 SCC 391, apex court has come to
\n\tconclusion that every department of Government cannot be considered
\n\tas industry and dispensing with services of persons engaged on daily
\n\twages in a Government Department therefore is not a retrenchment.
\n\tWord retrenchment
\n\thas been interpreted. Relevant observations made in para 3 of said
\n\tdecision are quoted as under:\n<\/p>\n
“3.\n<\/p>\n
\tThe admitted position is that the petitioner No. 1 came to be
\n\tappointed as Assistant, Petitioner No. 2 as Driver and Petitioner
\n\tNos. 3 to 5 as Peons on different dates, viz., on August 1, 1988,
\n\tNovember 10, 1989, May 31, 1987 and April 22, 1992. They were
\n\tappointed in the Co-operative Training Institute, Deoghar by its
\n\tPrincipal. They are admittedly daily wage employees. Their services
\n\tcame to be terminated by the Principal. Calling that termination in
\n\tquestion, they filed a writ petition in the High Court. The main
\n\tgrievance of the petitioners before us is that termination of their
\n\tservices is in violation of Section 25-F of the Industrial Disputes
\n\tAct, 1947. The question for consideration, therefore, is : whether
\n\tthe petitioners can be said to have been ‘retrenched’
\n\twithin the meaning of Section 25-F of the Industrial Disputes Act ?
\n\tEvery Department
\n\tof the Government cannot be treated to be “industry”. When
\n\tthe appointments are regulated by the statutory rules, the concept
\n\tof ‘industry ‘ to that extent stands excluded. Admittedly, they were
\n\tnot appointed to the posts in accordance with the rules but were
\n\tengaged on the basis of need of the work. They are temporary
\n\temployees working on daily wages. Under these circumstances, their
\n\tdisengagement from service cannot be construed to be a retrenchment
\n\tunder the Industrial Disputes Act. The concept of “retrenchment”,
\n\ttherefore, cannot be stretched to such an extent as to cover these
\n\temployees. The learned counsel for the petitioners seeks to contend
\n\tthat in the High Court, the petitioners did not contend that it is a
\n\tcase of retrenchment but termination of their services is arbitrary.
\n\tSince they are only daily-wage employees and have no right to the
\n\tposts, their disengagement is not arbitrary.”\n<\/p>\n
Considering
\n\taforesaid decision of apex court in case of Himanshu KUMar Vidyarthi
\n\t(supra), petitioner establishment is not Government Department and
\n\tDistrict Panchayat is covered by definition of industry and
\n\trespondent workman was not appointed against any post but respondent
\n\tworkman herein was appointed as daily wager driver and after his
\n\ttermination, work is available and in respect of vehicle which is in
\n\trunning condition as admitted by witness for petitioner, regularly
\n\tselected driver has not been appointed and therefore, they are
\n\ttaking work of driver through person having knowledge of driving as
\n\tand when required and thus work is still available and after
\n\ttermination of respondent, new daily wager driver has been engaged
\n\tby petitioner establishment and, therefore, in light of these facts
\n\tof case before
\n\thand, decision of apex court in case of Himanshu
\n\tKumar Vidyarthi is not applicable.\n<\/p>\n
Recently,
\n\tDivision Bench of this Court has examined question that in case of
\n\tdaily wager, while calculating 240 days, whether weekly off and
\n\tpublic and festival holidays are required to be included or not. The
\n\tanswer given by Division Bench is in negative after considering
\n\tdecision of Apex Court reported in AIR 1986 SC 458 and  decision of
\n\tthis Court reported in 2006 (3) GLR page 2432. This little bit
\n\tcreate confusion and legal complication which legal aspect required
\n\tfurther detailed examination for legal clarification of ratio laid
\n\tdown by apex court in AIR 1986 SC 458 where no distinction made
\n\tbetween daily wager and temporary employee. Both type of employees
\n\tare entitled for statutory weekly off and public holiday under
\n\tprovisions of Minimum Wages Rules and Bombay Shops and
\n\tEstablishments Act and also real interpretation of section 25B(1)
\n\tand (2) of ID Act, 1947. Hence this Court has considered recent
\n\tdecision of Division Bench of this Court in case of  RANJIT
\n\tNATVARLAL CHAUHAN Versus
\n\tMORBI
\n\tNAGAR PALIKA reported
\n\tin [2011] 26 GHJ (482), Division Bench of this Court has examined
\n\tquestion that in calculation of 240 days continuous service as
\n\trequired under section 25B (1) and (2) of ID Act, 1947, whether
\n\tpublic holidays and weekly off are to be included or not. Relevant
\n\tobservations made by Division Bench of this Court
\n\twhile considering decision of this Court in case of Sihor
\n\tNagarpalika versus Natvarlal Maganlal Trivedi, 2006(3) GLR 2432;
\n\tWorkmen of American Express International Banking Corporation Versus
\n\tManagement of American International Banking Corporation reported in
\n\tAIR 1986 SC 458 and observed as under:\n<\/p>\n
“The
\n\tfirst aspect is about the findings recorded by the Labour Court for
\n\tcompletion of 240 days in the preceding year prior to the
\n\ttermination.  The evidence on record has been accepted by the Labour
\n\tCourt which shows that even as per the Labour Court, the evidence
\n\twas to the effect that the workman had worked for 215 days. But, in
\n\tview of the above referred two decisions, one of this Court in the
\n\tcase of Shihor Nagarpalika (supra) and another of the Apex Court in
\n\tthe case of Workmen of American Express International Banking
\n\tCorporation (supra), the weekly holidays and other holidays are to
\n\tbe added and the Labour Court has concluded that the workman had
\n\tworked for 240 days.\n<\/p>\n
We
\n\tmay first consider the decision of the Apex Court in the case of
\n\tWorkmen of American Express International Banking Corporation
\n\t(supra).  In the facts of the said case, at para 2, it has been
\n\tspecifically mentioned that the
\n\tworkman had joined the service of the American
\n\tExpress International Banking Corporation as Typist in temporary
\n\tcapacity and was employed as such with a number of short breaks till
\n\this services were terminated.  The pertinent aspect is that the
\n\tperson had joined service as Typist-Clerk in temporary capacity and
\n\tit was not the case of engagement of and any person as daily wager
\n\tlike in the present case.  It is in those facts and circumstances of
\n\tthe case that the person had worked in service in temporary
\n\tcapacity, the observations were made by the Apex Court.  Thereby, it
\n\tcannot be said that even if a person is engaged as daily wager, and
\n\the had worked for a particular number of days, while counting the
\n\ttotal actual working, the weekly holidays are to
\n\tbe added.  If such is considered, the very distinction of a person
\n\tengaged on temporary basis and a person engaged as daily wager would
\n\tbe lost.  In the case of an engagement of a person as daily wager,
\n\tthe person is to be paid calculating his wage on daily basis whereas
\n\tin case of a person who is engaged on temporary post, he can be
\n\tconsidered as an employee on monthly basis and his engagement can
\n\talso be considered as on monthly basis.\n<\/p>\n
It
\n\tappears that in the case of Shihor Nagarpalika (supra), the
\n\taforesaid distinction about the status of the person as daily wager
\n\tand the working by a person on a temporary post has not been
\n\tconsidered.  In our view, if a person is engaged as a daily wager,
\n\the cannot be put at par with the person who has been engaged or who
\n\thas been worked on temporary basis for a particular span. It appears
\n\tthat in the decision of this Court in the case of Shihor
\n\tNagarpalika(supra), the correct effect of decision of the Apex Court
\n\tand the distinction between the daily wager and the person engaged
\n\ton temporary post has not been considered.  Therefore, we find that
\n\tthe view taken in Shihor Nagarpalika (supra) by the learned Single
\n\tJudge of this Court is not correct view.  In the case of the daily
\n\twager, if one has to claim the benefit of section 25F of the Act, it
\n\twill be required for him to prove that he had actually worked
\n\tcontinuously for a period of 240 days and while counting 240 days,
\n\tthe weekly holidays which are available to
\n\tthe permanent employees or in a regular set up
\n\tor to employee appointed on temporary post cannot be considered
\n\twhile computing 240 days.  Same situation will prevail for exclusion
\n\tof the public holidays in case of daily wager unlike the persons
\n\tappointed on temporary basis.\n<\/p>\n
Under
\n\tthe above circumstances, we find that the Labour Court has wrongly
\n\trelied upon the aforesaid both the decisions and has wrongly added
\n\tweekly holidays and public holidays for computing 240 days of
\n\tservice for the purpose of considering the question of breach of
\n\tsection 25F of the Act.  It is true that the learned Single Judge in
\n\tthe impugned order could have considered the another decision of
\n\tthis Court in the case of Shihor Nagarpalika (supra),  however, the
\n\tlearned counsel for the appellant has not been able to show before
\n\tthis Court that the aforesaid decision was brought to the notice of
\n\tthe learned Single Judge at the time when the petition was heard. In
\n\tany event, when we find that the view taken by this Court in the
\n\tcase of Shihor Nagarpalika (supra) is not by correct interpretation
\n\tand the effect of the decision of the Apex Court in the case of
\n\tWorkmen of American Express International Banking Corporation
\n\t(supra), nothing much would turn on the merits of the present appeal
\n\tsince the workman concerned in the present case was appointed on
\n\tdaily wages as a daily rated workman.\n<\/p>\n
If
\n\tthe aforesaid period of weekly holidays and public holidays are
\n\texcluded in counting 240 days of service, it appears that even as
\n\tper the finding recorded by the Labour Court, it would come to 215
\n\tdays, which will be less than 240 days.\n<\/p>\n
Under
\n\tthe circumstances, it can be said that the findings recorded by the
\n\tLabour Court that the workman had completed 240 days was perverse to
\n\tthe record and the same could not be sustained.\n<\/p>\n
As
\n\tregards the alleged breach of sections 25G and 25H of the Act is
\n\tconcerned, it appears that the view taken by the learned Single
\n\tJudge in the impugned order that if the person has not
\n\tcompleted 240 days of service, there will not
\n\tbe any question of following the procedure under section 25G and 25H
\n\tof the Act is not supported by the recent decision of the Apex Court
\n\tin the case of Harjinder Singh Versus Punjab State Warehousing
\n\tCorporation  reported at 2010(3) SCC 192 (equivalent AIR 2010 SC
\n\t1116), but the matter does not end there.  Even if the contention of
\n\tthe learned counsel is considered for the sake of examination on the
\n\taspect of alleged breach of sections 25G and 25H of the Act, it
\n\tappears that the Labour Court has not accepted the contention of the
\n\tappellant for the alleged breach of section 25G of the Act and
\n\ttherefore, such finding not being in favour of the appellant, it
\n\twould not be open to the appellant to take the benefit of the
\n\talleged breach of section 25G of the Act.  Even otherwise also, the
\n\taward shows that as per the Labour Court, the workman did not
\n\tdischarge the burden of giving details satisfactorily of the juniors
\n\twho were retained in service to claim the benefit of section 25G of
\n\tthe Act.\n<\/p>\n
Concerning
\n\tto the finding recorded by the Labour Court for the alleged breach
\n\tof section 25H of the Act, we find that the approach of the Labour
\n\tCourt cannot be countenanced.  The examination of the facts of the
\n\tpresent case further shows that there was no evidence on record
\n\tbefore the Labour Court by giving the names of the person who were
\n\toffered employment after termination of the workman in question.
\n\tMere allegation that the employer had made new recruitment, in our
\n\tview cannot be said to be a sufficient discharge of burden by the
\n\tworkman. It is required for the workman to state on oath with the
\n\tdetails of the persons who have been offered employment by way of
\n\tfresh recruitment or juniors to him.  It is only after that burden
\n\tis discharged by the workman, the burden would shift to the employer
\n\tto disprove the said fact.  There was no evidence before the Labour
\n\tCourt except the bare statement of the workman that after his
\n\ttermination new recruitment was made.  Under these circumstances, we
\n\tfind that when the workman had not discharged the burden, which was
\n\trequired to be proved by him for taking benefit of section 25H of
\n\tthe Act, the finding recorded by
\n\tthe Labour Court could be said as perverse to
\n\tthe record of the case.  Under the circumstances, the said part of
\n\tthe award cannot be sustained in the eye of law.\n<\/p>\n
In
\n\tview of the aforesaid observations for the alleged breach of section
\n\t25H of the Act, we find that even if the contention of the learned
\n\tcounsel for the appellant is considered and examined on merits, the
\n\tsame would not lead us to maintain the finding of the Labour Court
\n\tof alleged breach of section 25H of the Act even if the matter is
\n\tconsidered on the premise that for invoking the section 25H of the
\n\tAct, it is not necessary that the workman concerned should have
\n\tworked for 240 days in service.  Hence we find that no useful
\n\tpurpose would be served in examining
\n\tthe said contention further on the aspects of approach of the
\n\tlearned Single Judge for the alleged breach of section 25H of the
\n\tAct.”\n<\/p>\n
Considering
\n\taforesaid decision of Division Bench of this Court, view taken by
\n\tthis Court in case of SHIHOR
\n\tNAGAR PALIKA THROUGH CHIEF OFFICER Versus
\n\tNATVARLAL
\n\tMAGANLAL TRIVEDI, reported
\n\tin 2006(3) GLR page 2432
\n\tis
\n\trequired to be considered  which has been considered by Division
\n\tBench of this Court in decision as referred to above. In case of
\n\tSihor Nagar Palika (supra), this Court has held that weekly off,
\n\tpublic holidays and festival holidays are required to be taken into
\n\taccount while counting days of continuous service as discussed in
\n\tpara 10 of judgment which is quoted as under:\n<\/p>\n
“10.\tI
\n\thave considered the reasonings given by the Labour Court as well as
\n\tsubmissions made by both the learned advocates appearing on behalf
\n\tof the respective parties. On three grounds, the termination has
\n\tbeen rightly set aside by the Labour Court.\n<\/p>\n
(i)\tIn
\n\twritten statement, petitioner has made clear
\n\tstatement that if the workmen are prepared
\n\tto work on the same terms and conditions, petitioner is prepared to
\n\treinstate them on job in same terms and conditions. Therefore,
\n\tpetitioner was prepared to reinstate the workmen when dispute was
\n\traised by the workmen against the termination;\n<\/p>\n
(ii)
\n\tExcept five workmen, rest of have completed 240 days continuous
\n\tservice and same has been proved before the Labour Court. In respect
\n\tto five workmen, those who were not able to prove 240 days continue
\n\tservice, the record which was produced by the workmen was only for a
\n\tperiod of twelve months preceding twelve months from the date of
\n\ttermination, but rest of the record was not produced by the
\n\tpetitioner.\n<\/p>\n
\tIn respect to five workmen, those who have not completed 240 days,
\n\tthe decision of Apex Court in case of Workmen
\n\tof American Express International Banking Corporation v. Management
\n\tof American Express International Banking Corporation<\/a>
\n\treported in AIR
\n\t1986 SC 458 = 1986 Lab.I.C. 98
\n\tis required to be taken into account and if calculating the weekly
\n\toff, public holidays and festival holidays for a period of twelve
\n\tmonths which covered to complete 240 days.\n<\/p>\n
(iii)
\n\t\tThere is a clear finding given by the Labour Court in Para 14 that
\n\tpetitioner has violated Section 25-H of the Industrial Disputes Act,
\n\t1947. In violation of mandatory provisions of Section 25-H is also
\n\tgive right to the workmen of reinstatement. This being an
\n\tindependent right has been given to the workmen. Irrespective of the
\n\tfact that whether workmen had completed 240 days service or not?
\n\tTherefore, on these three counts, Labour Court has rightly granted
\n\treinstatement with continuity of service.”\n<\/p>\n
\tIt
\n\tis the contention raised by learned advocate Mr. Dipak C. Raval for
\n\tpetitioner that respondent workman was appointed as daily wager
\n\tdriver de-hors recruitment rules, therefore, according to him,
\n\ttermination is valid. This aspect has been considered by this Court
\n\tin Sihor Nagar Palika (supra) in para 16, 17 and 18 which are quoted
\n\tas under:\n<\/p>\n
“16.\tThis
\n\taspect has been examined by the Apex Court in reported decision in
\n\tcase of Vikramaditya
\n\tPandey v. Industrial Tribunal and Another<\/a> reported
\n\tin 2001
\n\tAIR SCW 310.\n<\/p>\n
\tThe relevant para 6 is quoted as under :\n<\/p>\n
” Para
\n6 :\tWe have carefully
\nconsidered the respective contentions made on behalf of the parties.
\nIt is not in dispute that the Award passed by the Tribunal was not
\nchallenged by the Bank. The Tribunal as well as the High Court have
\nconcurrently found that the case of the appellant was one
\nof retrenchment and that the appellant was working between the period
\n4-12-1981 to 19-7-1985 with small motivated breaks and that in any
\ncase he worked for more than 240 days in a year before termination of
\nservices. The Tribunal in para 5 of its Award has stated thus:-\n<\/p>\n
“It is however
\nevident that he worked for much more than 240 days in an year before
\nhis service ceased. It is also clear that breaks were given and ad
\nhoc appointment made every time for 90 days or less. This was
\nevidently done to stick to the letter of the law regarding the
\nauthority of the bank in regard to making appointments only for
\nlimited periods in ad hoc or temporary arrangement, as specified in
\nthe service Regulations, 1975. It is however, clear that services of
\nthe workman were needed as the work was available but a continuing
\ntemporary appointment was not made even though under Regulation
\n5(iii) of the Service Regulations such longer term stop-gap
\nappointment (and not only for 90 days) can be made with prior
\napproval of the competent authority (the Board). It would thus,
\nappear that attempt was made confirm to the letter of law and not its
\nspirit in so far as provisions regarding retrenchment under the
\nIndustrial Disputes Act go.”\n<\/p>\n
The only issue before
\nthe High Court was whether the appellant was entitled to
\nreinstatement in service with back wages, once the termination of his
\nservices had been held to be illegal and more so when the same was
\nnot challenged. Ordinarily, once the termination of service of an
\nemployee is held to be wrongful or illegal the normal relief of
\nreinstatement with full back wages shall be available to an employee;
\nit is open to the employer to specifically plead and establish that
\nthere were special circumstances which warranted either
\nnon-reinstatement or non-payment of back wages. In this case we do
\nnot find any such pleading of special circumstances either before the
\nTribunal or before the High Court. Since Regulation 103 of the
\nRegulations is referred to in the order of the Tribunal as well as in
\nthe High Court and it has bearing in deciding the controversy, the
\nfocus is needed on it. It reads:-\n<\/p>\n
“103. The
\nprovisions of these regulations to the extent of their inconsistency
\nwith any of the provisions of the Industrial Disputes Act, 1947, U.P.
\nDookan Aur Vanijya Adhishthan Adhiniyam, 1962, Workmen’s Compensation
\nAct, 1923 and any other Labour Laws for the time being in force, if
\napplicable to any Co-operative Society or class of co-operative
\nsocieties, shall be deemed to be inoperative.”\n<\/p>\n
By
\nplain reading of the said Regulation it is clear that in case of
\ninconsistency between the Regulations and the provisions of the
\nIndustrial Disputes Act, 1947, the State Act, the Workmen’s
\nCompensation Act, 1923 and any other labour laws for the time being
\nin force, if applicable to any co-operative society or class of
\nco-operative societies, to that extent Regulations shall be deemed to
\nbe inoperative. In other words, the inconsistent provisions contained
\nin the Regulations shall be inoperative, not the provisions of the
\nother statutes mentioned in the Regulation 103. The Tribunal in this
\nregard correctly understood the Regulation but wrongly refused the
\nrelief on the ground that no reinstatement can be ordered on a
\nregular employment in view of the provisions contained in the said
\nRegulation. But the High Court read the Regulation otherwise and
\nplainly misunderstood it in saying that if there is any inconsistency
\nbetween the Regulations and the Industrial Disputes Act, 1947 and
\nother labour laws for the time being in force the Regulations will
\nprevail and the Industrial Disputes Act, 1947 and other labour laws
\nshall be deemed to be inoperative. This misreading and wrong approach
\nof the High Court resulted in wrong conclusion. In the view it took
\nas to Regulation 103 the High Court proceeded to State that even if
\nthere was retrenchment in
\nview of Regulation 5 of the Regulations the Labour Court was not
\ncompetent to direct reinstatement of the appellant who was not
\nrecruited in terms of Regulation 5 because the Labour Court had to
\nact within the ambit of law having regard to the Regulations by which
\nthe workman was governed. In this view the High Court declined relief
\nto the appellant which in our view cannot be sustained. The Tribunal
\nfelt difficulty in ordering reinstatement as the appellant was not a
\nregular employee. The appellant ought to have been ordered to be
\nreinstated in service once it was found that his services were
\nillegally terminated in the post he was holding including its nature.
\nThus in our opinion both the Tribunal as well as the High Court were
\nnot right and justified on facts and in law in refusing the relief of
\nreinstatement of the appellant in service with back wages. But,
\nhowever, having regard to the facts and circumstances of the case and
\ntaking note of the fact that the order of termination dates back to
\n19-7-1985 we think it just and appropriate in the interest of justice
\nto grant back wages only to the extent of 50%.”\n<\/p>\n
17.\tRecently,
\nthe Apex Court has observed in case of Nagar Maha Palika (Now
\nMunicipal Corporation v. State of UP & Ors., reported
\nin 2006 AIR SCW 2497, as under:\n<\/p>\n
“The
\ntermination was in violation of S.6 N. The respondent cannot be said
\nto have been appointed on temporary  basis pursuant to the said GO
\ndated 19.12.1985 or such appointments cannot be said to be were made
\nfor a fixed tenure within the meaning of the provisions of sub-cl.
\n(bb) of cl. (oo) of section 2. But the appointment of respondents
\nhave been made in violation of the provisions of the Adhiniyam. An
\nappointment made in violation of the provisions of Adhiniyam is void.
\nThe same however although would not mean that the provisions of the
\nIndustrial Disputes Act
\nare not required to be taken into consideration for the purpose of
\ndetermination of the question as to whether the termination of
\nworkmen from service is legal or not but the same
\nshould have to be considered to be an important factor in the matter
\nof grant of relief.”\n<\/p>\n
18.\tThe
\nApex Court has observed that appointments made by authority in
\nviolation of Act and Rules governing such appointment is void. Though
\nsame would not mean that provisions of Industrial Disputes Act, 1947
\nwere not required to be taken into consideration for determination of
\nquestion whether termination is legal or not but same should have to
\nbe considered to be an important factor in the mater of grant of
\nrelief. ”\n<\/p>\n
In
\n\tcase of
\n\tH.D. Singh and Reserve Bank of India and others, reported
\n\tin 1985 (51) FLR page 495, the phrase “for
\n\tany reason”\n<\/p>\n
\toccurring in section 2(oo) of ID Act, 1947 has been considered by
\n\tapex court. Therefore, relevant observations made by apex court in
\n\tpara 7,8 and 12 are quoted as under:\n<\/p>\n
“7.\n<\/p>\n
\tIt is clear from the pleadings and from the documents noted above
\n\thow the respondent-bank managed to get  rid of the appellant. The
\n\tdisclosures made in the confidential circular make our task easy in
\n\tholding that the Bank was determined to adopt methods to terminate
\n\tthe services of the employees like the appellant.. The appellant was
\n\tnot told that he would be struck off the rolls if he passed the
\n\tmatriculation. He was not given any order in writing either refusing
\n\twork or informing him that his name would be struck off the rolls.
\n\tThe case of the bank is that he was orally informed that his name
\n\thas been struck off. Striking off the name of a workman from the
\n\trolls by the employer amounts to ‘termination of service’ and such
\n\ttermination is retrenchment within the meaning of Section 2(oo) of
\n\tthe Act if effected
\n\t.in violation of the mandatory provision contained in S. 25-F, and
\n\tis invalid. In this case the facts. need only to be stated to hold
\n\tthat the petitioner’s
\n\tname had been struck off the list contrary to the mandate contained
\n\tin S. 25F. This Court has held in Delhi Cloth and General Mills Ltd.
\n\tv. Shambhu Nath Mukherjee,<\/a> (1978) 1 SCR 591 : (AIR 1978 SC 8) that
\n\tstriking off the name from the rolls by the management is
\n\tretrenchment within the meaning of S. 2(oo) of the Act. While
\n\treading Ss. 25-F, 25-B and Section 2(oo), Krishna Iyer, J. in State
\n\tBank of India v. N. Sundara Money,<\/a> (1976) 3 SCR 160 : (AIR 1976 SC
\n\t1111) has observed that the words ‘for any reason whatsoever’
\n\toccurring in S. 2(oo) are very wide and almost admitting of no
\n\texception. It was made clear that a comprehensive definition has to
\n\tbe effected to protect the weak against the strong in construing the
\n\tambit of the words contained in S. 2(oo). Pithily he observed that
\n\t“without further ado, we reach the conclusion that if the
\n\tworkman swims into the harbour of S. 25-F, he cannot be retrenched
\n\twithout payment, at the time of retrenchment, compensation computed
\n\tas prescribed therein read with S. 25-B(2).”\n<\/p>\n
\t8.
\n\tThat takes us to the question whether the appellant had qualified
\n\thimself to sustain his claim to the benefits of Section 25-F. The
\n\tappellant, as we will presently see, has given the number of days on
\n\twhich he worked, in his claim statement. The first respondent-bank
\n\tarranged posting Tikka Mazdoors, like the appellant; in such a
\n\tmanner that they were denied the benefits of the Industrial Disputes
\n\tAct. Since the first respondent-bank disputed the fact that the
\n\tappellant had worked for sufficient number of days to entitle, him
\n\tto claim remedies under the Act, we think it necessary to refer to
\n\tthe facts as disclosed in the records. The Advocate who appeared for
\n\tthe appellant before the Tribunal, Shri R. N. Srivastava, has filed
\n\tan affidavit in this Court stating that he had filed written
\n\targuments before the Tribunal explaining the mistake committed by
\n\tthe Bank in the computation
\n\tmade by it of the number of working days of the appellant. From this
\n\taffidavit it is seen that the first respondent-bank put forward a
\n\tcase that the attendance register for the month of July, 1976 had
\n\tbeen destroyed and that Sundays and other holidays were not taken
\n\tinto account in computing the number of days that the appellant
\n\tworked. We have also a supplementary affidavit filed by the
\n\tappellant himself which throws further light about the number of
\n\tdays that he worked. In this affidavit, it is seen that he worked
\n\tfor 4 days in 1974,154 days from January 1975 to December 1975 and
\n\t105 days from January 1976 to July 1976. The appellant was denied
\n\twork from July 1976. His affidavit shows that he had worked for 202
\n\tdays from July 1975 to July 1976. According to him, if we add 52
\n\tSundays and 17 holidays, the total number of days on which he worked
\n\tcomes to 271 days. The appellant charged the Bank with having
\n\ttampered with the records. To contradict the appellant’s case; the
\n\tfirst respondent-bank did not produce its records. The appellant
\n\twanted the relevant records to be filed but they were not produced.
\n\tGrounds 18 to 20 of the special leave petition make mention of this
\n\tplea of the appellant. These grounds are met by the first
\n\trespondent-bank in their counter-affidavit filed in this Court by
\n\tstating that “when the matter was before the Industrial
\n\tTribunal, the registers in question were filed in another case
\n\tbefore the Industrial Tribunal-cum-Labour Court and produced in that
\n\tCourt. However, I submit that now the attendance register has been
\n\tdestroyed but the payment registers are available with the
\n\trespondent-bank as proof of the number of days on which the
\n\tappellant worked.” In the absence of any evidence to the
\n\tcontrary, we have necessarily to draw the inference that the
\n\tappellant’s case that he had worked for more than 240 days from
\n\tJuly, 1975 to July, 1976, is true.\n<\/p>\n
\txxx<\/p>\n
\t12.
\n\tWe thought it necessary to refer to the factual details in the case
\n\tonly to show our concern at the manner in which the employer in this
\n\tcase, the Reserve Bank of India, who should set a model for other
\n\temployers being a prestigious institution, behaved towards its
\n\temployees. It must have been his helpless condition and object
\n\tpoverty that forced the appellant to accept a job on Rs. 3 per day.
\n\tStill see how he has been treated. We will not be far from truth if
\n\twe say that the Bank has deliberately indulged in unhealthy labour
\n\tpractice by rotating employees like the appellant to deny them
\n\tbenefits under the Industrial Law. It has disturbed us to find that
\n\tthe appellant was denied job because he has become better qualified.
\n\tPerhaps the Reserve Bank of India and its officers are not aware of
\n\tthe grave unemployment problem facing the youth of this country and
\n\talso not aware of the fact that graduates, both boys and girls,
\n\tsweep our roads and post-graduates in hundreds, if not in thousands,
\n\tapply for the posts of peons. It has been our sad experience to find
\n\temployers trying to stifle the efforts of employees in their
\n\tlegitimate claims seeking benefits under the Industrial Law by
\n\ttiring them out in adjudication proceedings raising technical and
\n\thyper-technical pleas, Industrial adjudication in bona fide claims
\n\thave been dragged on by employers for years together on such pleas.
\n\tIt would always be desirable for employers to meet the case of the
\n\temployees squarely on merits and get them adjudicated quickly. This
\n\twould help industrial peace. It is too late in the day for this
\n\tCourt to alert the employers that their attempt should be to evolve
\n\ta contented labour. We do not forget at the same time the fact that
\n\tit is necessary for the labour also to reciprocate to prevent
\n\tindustrial unrest. In this case, for
\n\texample, the Bank should have treated the appellant as a regular
\n\thand in List II. Instead, the Bank has, by adopting dubious methods,
\n\tinvited from us, remarks which
\n\twe would have normally avoided.”\n<\/p>\n
Recently,
\n\tin case of  RANJIT
\n\tNATVARLAL CHAUHAN Versus MORBI NAGAR PALIKA reported
\n\tin [2011] 26 GHJ (482), Division Bench of this Court has considered
\n\tdecision of apex court in case of Workmen of American Express
\n\tInternational Banking Corporation Versus Management of American
\n\tInternational Banking Corporation reported in AIR 1986 SC 458
\n\tdistinguishing facts on ground that in case of Workmen of American
\n\tExpress International Banking Corporation (supra), workmen were
\n\tappointed in temporary capacity, on such ground, case of  daily
\n\twager has been distinguished by Division Bench of this Court holding
\n\tthat temporary employees are entitled for weekly off, public
\n\tholidays and festival holidays but daily wagers are not entitled for
\n\tsuch benefit and therefore, decision of Hon’ble Supreme Court in
\n\tcase of Workmen of American Express International Banking
\n\tCorporation reported in AIR 1986 SC 458 has been distinguished by
\n\tDivision Bench of this Court in above referred decision. In view of
\n\tthat, para 4,5,6 of decision of apex court in case of  Workmen of
\n\tAmerican Express International Banking Corporation Versus Management
\n\tof American International Banking Corporation reported in AIR 1986
\n\tSC 458 are required to be considered. Therefore, para 4,5 and 6 of
\n\tsaid decision are quoted as under:\n<\/p>\n
\t“4.\n<\/p>\n
\tThe principles of statutory construction are well settled. Words
\n\toccurring in statutes of liberal import such as social welfare
\n\tlegislation and Human Rights’ legislation are not to be put in
\n\tprocrustean beds or shrunk to Liliputian dimensions. In construing
\n\tthese legislations the imposture of literal construction must be
\n\tavoided and the prodigality of its mis-application must be
\n\trecognised and reduced. Judges ought to be more concerned with the
\n\t‘colour’, the ‘content’ and the ‘context’ of such statutes. (We have
\n\tborrowed the words from Lord Wilberforce’s opinion in Prenn v.
\n\tSimmonds, 1971 (3) All ER 237). In the same opinion Lord Wilberforce
\n\tpointed out that law is not to be left behind in some island of
\n\tliteral interpretation but is to enquire beyond the language,
\n\tunisolated from the matrix of facts in which they are set; the law
\n\tis not to be interpreted purely on internal linguistic
\n\tconsiderations. In one of the cases cited before us, that is,
\n\tSurendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour
\n\tCourt,<\/a> we had occasion to say, “Semantic luxuries are misplaced
\n\tin the interpretation of ‘bread and butter’ statutes. Welfare
\n\tstatutes must, of necessity, receive a broad interpretation. Where
\n\tlegislation is designed to give relief against certain kinds of
\n\tmischief, the Court is not to make inroads by making etymological
\n\texcursions.”\n<\/p>\n
5.
\n\tSection 25-F of the Industrial Disputes Act is plainly intended to
\n\tgive relief to retrenched workmen. The qualification for relief
\n\tunder S. 25-F is that he should be a workman employed in an industry
\n\tand has been in continuous service for not less than one year under
\n\tan employer. What is continuous service has been defined and
\n\texplained in S. 25-B of the Industrial Disputes Act. In the present
\n\tcase, the provision which is of relevance is S. 25-B(2)(a)(ii) which
\n\tto the extent that it concerns us, provides that a workman who is
\n\tnot in continuous service for a period of one year shall be deemed
\n\tto be in continuous service for a period of one year if the workman.
\n\tduring a period of twelve calendar months preceding the date with
\n\treference to which the calculation is to be made, has actually
\n\tworked under the employer
\n\tfor not less than 240 days. The expression which we are required to
\n\tconstrue is ‘actually worked under the employer. This expression,
\n\taccording to us, cannot mean those days only when the workman worked
\n\twith hammer, sickle or pen, but must necessarily comprehend all
\n\tthose days during which he was in the employment of the employer and
\n\tfor which he had been paid wages either under express or implied
\n\tcontract of service or by compulsion of statute, standing orders,
\n\tetc. The learned counsel for the Management would urge that only
\n\tthose days which are mentioned in the Explanation to S. 25-B(2)
\n\tshould be taken into account for the purpose of calculating the
\n\tnumber of days on which the workman had actually worked though he
\n\thad not so worked and no other days. We do not think that we are
\n\tentitled to so constrain the construction of the expression
\n\t‘actually worked under the employer’. The explanation is only
\n\tclarificatory, as all explanations are, and cannot be used to limit
\n\tthe expanse of the main provision. If the expression ‘actually
\n\tworked under the employer’ is capable of comprehending the days
\n\tduring which the workman was in employment and was paid wages – and
\n\twe see no impediment to so construe the expression – there is no
\n\treason why the expression should be limited by the explanation. To
\n\tgive it any other meaning then what we have done would bring the
\n\tobject of S. 25-F very close to frustration. It is not necessary to
\n\tgive examples of how S. 25-F may be frustrated as they are too
\n\tobvious to be stated.\n<\/p>\n
6.
\n\tThe leading authority on which reliance was placed by the learned
\n\tcounsel for the Management was Lalappa Lingappa v. Laxmi Vishnu
\n\tTextile Mills Ltd., (AIR<\/a> 1981 SC 852). We may straightway say that
\n\tthe present question whether Sundays and paid holidays should be
\n\ttaken into account for the purpose of reckoning the number of days
\n\ton which an employee actually worked, never arose there. The claim
\n\twas under the Payment of Gratuity Act. All permanent employees of
\n\tthe employer claimed that they were entitled to payment of gratuity
\n\tfor the entire period of their service, that is, in respect of every
\n\tyear during which they were in permanent employment irrespective of
\n\tthe
\n\tfact whether they had, actually worked for 240 days in a year or
\n\tnot. The question there was not how the 240 days were to be
\n\treckoned; the
\n\tquestion was not whether Sundays and paid holidays were to be
\n\tincluded in reckoning the number, of days on which the workmen
\n\tactually worked; but the question was whether a workman could be
\n\tsaid to have been actually employed for 240 days by the mere fact
\n\tthat he was in service for the whole year whether or not he actually
\n\tworked for 240 days. On the language employed in S. 2(c) of the
\n\tPayment of Gratuity Act, the Court came to the conclusion that ,the
\n\texpression ‘actually employed’ occurring in Explanation I meant, the
\n\tsame thing as the expression ‘actually worked’ occurring in
\n\tExplanation II and that as the workmen concerned had not actually
\n\tworked for 240 days or more in the year they were not entitled to
\n\tpayment of gratuity for that year. The further question, as to what
\n\twas meant by the expression ‘actually worked’ was not considered as
\n\tapparently it did not arise for consideration. Therefore, the
\n\tquestion whether Sundays and other paid holidays should be taken
\n\tinto account for the purpose of reckoning the total number of days
\n\ton which the workmen could be said to have actually worked was not
\n\tconsidered in that case. The other cases cited before us do not
\n\tappear to have any bearing on the question at issue before us.”\n<\/p>\n
\tIn
\n\taforesaid decision, apex court has interpreted section 25B sub
\n\tsection (1) and (2) of ID Act, 1947 which is required to be
\n\tconsidered that workman shall be considered to be in continuous
\n\tservice. Therefore, section 25B(1) and (2) of ID Act, 1947 is quoted
\n\tas under:\n<\/p>\n
“Section
\n\t25B. Definition of continuous service
\n\t:- For the purposes of this Chapter,-\n<\/p>\n
\ta workman shall be
\n\tsaid to be in continuous service for a period if he is, for that
\n\tperiod, in uninterrupted service, including service which may be
\n\tinterrupted on account of sickness or authorized leave or an
\n\taccident or a strike which is not illegal, or a lock-out or a
\n\tcessation of work which is not due to any fault on the part of the
\n\tworkman;\n<\/p>\n
\t(2)\twhere a workman
\n\tis not in continuous service within th meaning of clause (1) for a
\n\tperiod of one year or six months, he shall be deemed to be in
\n\tcontinuous service under an employer -(a)\tfor a period of one year,
\n\tif the workman, during a period of twelve calender months preceding
\n\tthe date with reference to which calculation is to be made, has
\n\tactually worked under the employer for not less than –\n<\/p>\n
\t(i)\tone hundred and
\n\tninety days in the case of a workman employed below ground in a
\n\tmine; and<\/p>\n
\t(ii)\ttwo hundred and
\n\tforty days, in any other case;\n<\/p>\n
\t(b)\tfor a period of
\n\tsix months, if the workman, during a period of six calender months
\n\tpreceding the date with reference to which calculation is to be
\n\tmade, has actually worked under the employer for not less than –\n<\/p>\n
\t(i)\tninety-five
\n\tdays, in the case of workman employed below ground in a mine; and<\/p>\n
\t(ii)\tone hundred and
\n\ttwenty days, in any other case.\n<\/p>\n
\tExplanation –\n<\/p>\n
\tFor the purposes of clause (2), the number of days on which a
\n\tworkman has actually worked under an employer shall include the days
\n\ton which –\n<\/p>\n
\t(i)\the has been
\n\tlaid-off under an agreement or as permitted by standing orders made
\n\tunder the Industrial Employment (Standing Orders) Act, 1946 920 of
\n\t1946), or under the Act or under any other law applicable to the
\n\tindustrial establishment;\n<\/p>\n
\t(ii)\the has been on
\n\tleave with full wages, earned in the previous years;\n<\/p>\n
\t(iii)he has been
\n\tabsent due to temporary disablement caused by accident arising out
\n\tof and in the course of his employment; and<\/p>\n
\t(iv)\tin
\n\tthe case of female, she has been
\n\ton maternity leave; so, however, that the total period of such
\n\tmaternity leave does not exceed twelve weeks.”\n<\/p>\n
Thus,
\n\tsection 25B is giving definition of continuous service. Bare perusal
\n\tof aforesaid section 25B(1) suggests  that
\n\tfor
\n\tpurposes of this Chapter,\ta
\n\tworkman shall be said to be in continuous service for a period if he
\n\tis, for that period, in uninterrupted service, including service
\n\twhich may be interrupted on account of sickness or authorized leave
\n\tor an accident or a strike which is not illegal, or a lock-out or a
\n\tcessation of work which is not due to any fault on the part of the
\n\tworkman. Thus, as per section 25B of ID Act, 1947, a workman shall
\n\tbe said to be in continuous service for a period if he is, for that
\n\tperiod, having uninterrupted service, including service which may be
\n\tinterrupted on account of sickness or authorized leave or an
\n\taccident or a strike which is not illegal, or a lock-out or a
\n\tcessation of work which is not due to any fault on the part of
\n\tworkman. Therefore, interruptions in service on account of sickness
\n\tor authorized leave or an accident or a strike which is not illegal
\n\tor a lock out or a cessation of work which is not due to any fault
\n\ton part of workman have to be ignored while considering continuous
\n\tservice as defined under section 25-B (1) of ID Act, 1947. Bare
\n\treading of section 25B(1) of ID Act, 1947 suggests that if workman
\n\testablish before labour court that he has remained in continuous
\n\tservice of one year as per section 25B(1) of ID Act, 1947 and his
\n\tservice was not interrupted, then, question of completion
\n\tof 240 days does not arise. In this case, respondent workman has
\n\testablished before labour court that he has remained in continuous
\n\tservice for a period of one year as per documents produced by
\n\tpetitioner  establishment Exh. 12 from June, 2000 to June, 2002,
\n\tworkman was working as daily wager driver throughout for aforesaid
\n\tperiod of two years and in between, his service was not terminated
\n\tor interrupted for aforesaid reasons, therefore, in this case,
\n\tworkman has established continuous service as defined under section
\n\t25B(1) of ID Act, 1947and therefore, completion of 240 days within
\n\t12 months preceding date of termination is not required to be
\n\testablished independently by respondent workman as decided by this
\n\tCourt in case of Moti
\n\tCeramic Industries v. Jivuben Rupabhai & others<\/a>,
\n\treported in 2000(2) GLR page 1558. However, considering even section
\n\t25B, if weekly off  and public holidays are included, then, workman
\n\thas established 240 days continuous service as per provisions of ID
\n\tAct, 1947 and in view of that, contentions raised by learned
\n\tadvocate Mr. Dipak C. Raval on behalf of petitioner cannot be
\n\taccepted and recent decision of Division Bench of this Court as
\n\treferred to  has not considered section 25-B(1) and (2) of ID Act,
\n\t1947 while drawing distinction and holding that daily wager is not
\n\tentitled for weekly off and public holidays but temporary employees
\n\tare entitled for it, because,
\n\tdaily wager is not receiving monthly wages and temporary employee
\n\treceiving monthly wages. Such distinction has no meaning because
\n\teven a daily wager, if he remains in continuous service of six days,
\n\tthen, he is entitled for weekly off as per statutory provisions made
\n\tunder rules of Minimum Wages Act, 1948 is applicable to petitioner
\n\testablishment being a scheduled employment covered by Schedule under
\n\tsection 2(g) and Part-1. Employment in any Local Authority is
\n\tcovered by Minimum Wages Act, 1948. District Panchayat,
\n\tSurendranagar is Local Authority and petitioner establishment,
\n\tPrimary Health Center being part of Local Authority namely
\n\tSurendranagar District Panchayat, is covered by provisions of
\n\tMinimum Wages Act, 1948. Petitioner establishment is covered by
\n\tScheduled Employment as per Schedule as referred to above and
\n\taccording to Gujarat Minimum Wages, Rules, 1961, rule 24
\n\tprovides\/suggests number of hours of work which shall constitute a
\n\tnormal working day. Number of hours which shall constitute a normal
\n\tworking day shall be 9 hours in case of an adult and 4-1\/2 hours in
\n\tcase of a child. Rule 23 thereof provides weekly day of rest which
\n\tis available to daily wager if he has been working in scheduled
\n\temployment  in respect of which minimum rate of wages have been
\n\tfixed under Act shall be allowed  day of rest every week as referred
\n\tto as rest
\n\tday
\n\twhich shall ordinarily be a Sunday but employer may fix any other
\n\tday of week as rest
\n\tday
\n\tfor any employee or class of employees in that scheduled employment.
\n\tProvided that employee has worked in scheduled employment under same
\n\temployer for a continuous period of not less than six days. Under
\n\tMinimum Wages Act, 1948, definition of employee has been given in
\n\tsection 2(i). As per section 2(i) of Minimum Wages Act, 1948,
\n\temployee means any person who is employed for hire or reward to do
\n\tany work, skilled or unskilled, manual or clerical, in a scheduled
\n\temployment in respect of which minimum rates or wages have been
\n\tfixed; and includes an out worker to whom any articles or materials
\n\tare given out by another person, to be made up. Therefore,
\n\tconsidering section 2(i) of said Act,  any person employed for hire
\n\tor reward to do any work, skilled or unskilled, manual or clerical
\n\tin a scheduled employment  in respect of which minimum rates or
\n\twages have been fixed is an employee within Minimum Wages Act, 1948
\n\twhich includes daily wager also and it is not necessary that he must
\n\tbe a permanent employee. Word any
\n\tused at the commencement of this definition of employee also
\n\tsuggests that it includes daily wager. Therefore, in aforesaid
\n\tdefinition, there is no distinction between permanent employee and
\n\tdaily wager or temporary employee. District Panchayat is local
\n\tauthority. Petitioner PHC being part of Local Authority, is also
\n\tconsidered to be local authority covered by Scheduled
\n\tEmployment and Minimum Wages fixed by State Government are
\n\tapplicable to local authority and accordingly, respondent workman is
\n\tcovered by definition of employee under section 2(i) and if he is
\n\tallowed to work continuously for a period of six days, then, one
\n\trest day means rest day is statutorily available being weekly off to
\n\tsuch employee and, therefore, while calculating or counting 240 days
\n\tcontinuous service, actual weekly off after completion of six days
\n\tfor continuous service is also part of continuous service rendered
\n\tby employee, therefore, weekly off must have to be considered being
\n\tstatutory weekly off available to employee and in respect of workman
\n\twho has not been able to establish completion of actual 240 days
\n\twithin 12 months preceding date of termination, if he is able to
\n\testablish that he has remained in continuous service of one year
\n\twithin meaning of section 25B (1) of ID Act, 1947, then, he is
\n\tgetting protection of section 25F of ID Act, 1947. This aspect is
\n\tvery much relevant for interpreting section 25B (1) and (2) of ID
\n\tAct, 1947.\n<\/p>\n
It
\n\tis also necessary to note that statutory weekly off is also
\n\tavailable when Bombay Shops and Establishments Act, 1948 is
\n\tapplicable to such establishment. As per section 2(6) of said Act,
\n\temployee means a person wholly or principally employed, whether
\n\tdirectly or through any agency and whether for wages or other
\n\tconsideration, or in connection with any establishment; and includes
\n\tan apprentice but does not include a member of the employer’s
\n\tfamily. So, considering definition of employee given under section
\n\t2(6) of said Act, respondent herein is covered by said definition.
\n\tAs per section 2(15)(iii) of said Act, local authority means a
\n\tdistrict panchayat constituted under Gujarat Panchayats Act, 1993
\n\t(Gujarat 6 of 1962). Therefore, petitioner PHC is run and managed by
\n\tDistrict Panchayat, Surendranagar and petitioner PHC is also covered
\n\tby definition of local authority as defined under sec. 2(15)(iii) of
\n\tsaid Act. Then Bombay Shops and Establishments Act, 1948 is also
\n\tapplicable to petitioner establishment. As per section 2(7),
\n\temployer means a person owning or having ultimate control over
\n\taffairs of an establishment. As per section 2(31) of said Act, week
\n\tmeans period of seven days beginning at midnight of Saturday. As per
\n\tsection 2(19) of said Act, period of work means time during which an
\n\temployee is at the disposal of employer. As per section 2(11) of
\n\tsaid Act, holiday means a day on which an establishment shall remain
\n\tclosed or on which an employee shall be given a holiday under
\n\tprovisions of said Act. Every shops and establishments shall remain
\n\tclosed on one day of week. Section 18 of said Act provides for
\n\tholidays in a week in shops and commercial establishments. Every
\n\tshop and commercial establishment
\n\tshall remain closed on one day of week. Section 24 thereof provides
\n\tfor holidays in a week. Every employee shall be given at least one
\n\tday in a week as a holiday  as proviso thereto provides that nothing
\n\tin said  sub section shall apply to an employee whose total period
\n\tof employment in any week is less than six days. sub section (2) of
\n\tsection 24 of said Act provides that it shall not be lawful for an
\n\temployer to call an employee at, or for an employee to go to, his
\n\tresidential hotel,restaurant or eating house or any other place for
\n\tany work in connection with business of his residential hotel,
\n\trestaurant or eating house on a day on which such employee has a
\n\tholiday. Sub section (3) of said section 24 provides that no
\n\tdeduction shall be made from wages of any employee in a residential
\n\thotel, restaurant or eating house on account of any holiday given to
\n\thim under sub section (1). If an employee is employed on a daily
\n\twages, he shall none the less be paid his daily wage for holiday.
\n\tThus, as per sub section (3) of section 24 of Bombay Shops and
\n\tEstablishments Act, 1948 also, it is clear that even a daily wager
\n\tis entitled for holiday in a week if he has worked for a period of
\n\tsix days in a week. Section 34 of Act provides for daily hours of
\n\twork for young persons. Sub section (1) thereof provides that
\n\tnotwithstanding anything contained in this Act, no young person
\n\tshall be required or allowed
\n\tto work whether as an employee or otherwise, in any establishment
\n\tfor more than six hours in any day and sub section (2) thereof
\n\tprovides that no young person shall be required or allowed to work
\n\twhether as an employee or otherwise, shall be required or allowed to
\n\tperform such work as may be declared by State Government by
\n\tnotification in Official Gazette, to be work involving danger to
\n\tlife, health or morals. As per section 31(1) thereof, every employee
\n\tin a theatre or other place of public amusement or entertainment
\n\tshall be given at least one day in a week as a holiday. In short,
\n\tpetitioner establishment is covered by definition of local authority
\n\tbecause it is run and managed by District Panchayat Surendranagar
\n\tand Bombay Shops and Establishments Act, 1948 is applicable to
\n\tpetitioner establishment and after completion of continuous work of
\n\tsix days, one day statutory holiday is available to an employee as
\n\tgiven holiday and for that, employee is entitled for it with wages
\n\tand if statutory holiday with wages is available under Minimum Wages
\n\tRules and Bombay Shops and Establishments Act, then, that day of
\n\tholiday must have to be counted and included while calculating and
\n\tcounting 240 days continuous service under section 25B(1) and (2) of
\n\tID Act. Even sub section (3) of section 31 of Bombay Shops and
\n\tEstablishment Act also provides that if an employee is employed on
\n\tdaily wage, he shall nonetheless
\n\tbe paid his daily wage for the holiday given to him which means that
\n\teven daily wage employees are also entitled for such holidays in a
\n\tweek. The law is not distinguishing that particular class of workman
\n\tonly would be entitled for such benefit of public holidays and
\n\tfestival holidays. Even section 2(s) of ID Act, 1947 which is
\n\tdefining workman is also not drawing any such line of distinction.
\n\tThis aspect has lost sight by Hon’ble Division Bench of this Court
\n\twhile considering and holding that decision of this Court in case of
\n\t Sihor
\n\tNagarpalika versus Natvarlal Maganlal Trivedi, 2006(3) GLR 2432 is
\n\tnot deciding correct law. Decision of Hon’ble apex court in case of
\n\tWorkmen of American Express International Banking Corporation Versus
\n\tManagement of American International Banking Corporation reported in
\n\tAIR 1986 SC 458 has also not been properly considered by Hon’ble
\n\tDivision Bench of this Court because in that decision, Hon’ble apex
\n\tcourt has considered section 25B(1)&(2) of ID Act, 1947 and on
\n\tthat basis, weekly off being statutorily are available to workman
\n\tunder provisions of various labour laws and they are required to be
\n\tincluded while calculating 240 days continuous service. But in case
\n\tof  Workmen of American Express International Banking Corporation
\n\tVersus Management of American International Banking Corporation
\n\treported in AIR 1986 SC 458, there is
\n\tno such distinction drawn by Hon’ble Supreme Court as understood by
\n\tHon’ble Division Bench of this Court that daily wager employee is
\n\tnot entitled for weekly off and only temporary employees are
\n\tentitled for weekly off. This distinction was not there in decision
\n\tof apex court in case of  Workmen of American Express International
\n\tBanking Corporation Versus Management of American International
\n\tBanking Corporation reported in AIR 1986 SC 458 and even sec. 2(s)
\n\tof workman which is giving definition of workman is also not drawing
\n\tany such distinction. Hence, such distinction which has been made
\n\tout by Hon’ble Division Bench of this Court was  not the issue
\n\texamined by Hon’ble Supreme Court in case of  Workmen of American
\n\tExpress International Banking Corporation Versus Management of
\n\tAmerican International Banking Corporation reported in AIR 1986 SC\n<\/p>\n
\t458. <\/p>\n
It
\n\tis necessary to note that for claiming protection of section 25F of
\n\tID Act, 1947, it is not necessary for an employee to establish 240
\n\tdays continuous service u\/s. 25B(2) of ID Act if employee is able to
\n\tsatisfy conditions incorporated in section 25B(1) of ID Act and
\n\tproves continuous service within meaning of section 25B(1) of ID Act
\n\t that he remained in service of one year continuously and during
\n\tthat period, his service has not been interrupted by employer
\n\tbecause of any fault on his part, in such eventuality, such workman
\n\tis entitled for benefit
\n\tof section 25F of ID Act, 1947 irrespective of fact that  he has not
\n\tcompleted 240 days continuous service within 12 months preceding
\n\tdate of termination but he remained in service continuously for a
\n\tperiod of one year and his service has not been interrupted by
\n\temployer during one year period and there was no interruption in
\n\tservice due to any fault on his part. In case before hand, learned
\n\tAdvocate Mr. Raval for petitioner has not been able to point out
\n\tthat there was any interruption in service of respondent workman due
\n\tto any fault on his part and he cannot be considered to be in
\n\tcontinuous service within meaning of sec. 25B(1) of ID Act, 1947.
\n\tEven before Labour Court also, no any evidence to that effect was
\n\tproduced by petitioner. Therefore, contentions raised by learned
\n\tadvocate Mr.Dipak Raval to that effect cannot be accepted and same
\n\tare, therefore, rejected.\n<\/p>\n
In
\n\tcase of Prathma
\n\tBank V\/s. Presiding Officer, Central Government Industrial
\n\tTribunal-cum-Labour Court, Pandu Nagar, Kanpur
\n\treported in 2002\n<\/p>\n
\t– II – LLJ 1000,
\n\t this aspect has been examined by Allahabad High Court as discussed
\n\tin para 3 and 4. The relevant para 3 and 4 of said decision of
\n\tAllahabad High Court are quoted as under:\n<\/p>\n
“3.\tIt
\nis this part of the award, which is challenged by the employer inter
\nalia on the ground that in
\nparagraph 7 of the award the date of engagement in the second spell
\ni.e. July 23, 1989 i.e. date
\nof termination April 22, 1988, is not disputed by either side. The
\nIndustrial Tribunal-cum-Labour Court has also referred that it is
\nadmitted that between these two dates the total working days come to
\n275 days. The workman has contended that the Labour Court came to the
\nconclusion that between two dates, namely the date of engagement and
\nthe date of termination, the total working days come to 275 days. The
\nemployer has not given the number of days in their statement. In the
\nwritten statement filed by the workman, the workman has stated that
\nhe has worked for 275 days. The witness of the employer Shri S.K.
\nChandra has stated that the workman has worked 207 days during the
\naforesaid two dates. This fact has been sought to be corrected
\nbelated from the payment vouchers Ext.W-1 to Ext. W-15. Respondent
\nNo.1, the Labour Court came to the conclusion that even without
\nentering into the disputed fact, on the basis of admitted facts, the
\nmanagement version of 207 days working counted by employer is
\nexcluding the holidays. The respondent No.1 relied upon the decision
\nin the case of H.P. Singh v. Reserve Bank of India,<\/a> 1985 (51) FLR 494
\n(SC), in which it has been
\nheld that the Sunday and other Holidays are to be included within the
\ndefinition of continuous service as defined under Section 25-B(2),
\nread with Section 25(1) of the Industrial Disputes Act, 1947,
\ntherefore, the contention of the employer was rightly rejected by the
\nLabour Court that the respondent – workman had worked only 207
\ndays thus the finding arrived at by the Labour Court that the
\nrespondent – workman has worked more than 240 days, cannot be
\nassailed and therefore, is to be accepted.\n<\/p>\n
4.\tThe next contention
\nof the learned counsel for the petitioner is that in view of the
\ndecision reported in Himanshu Kumar Vidyarthi and others v. State of
\nBihar and others, 1997 (4) SCC 391 : 1998-II-LLJ-15, since the
\nworkmen in the aforestated cases were daily wagers, their services
\nstand terminated in terms of contract of employment, thus the ground
\nthat they are not covered by the definition of retrenchment as
\ndefined after 1984 amendment of Industrial Disputes Act, 1947, cannot
\nbe accepted. In the case of U.P. State Sugar Corporation Ltd. v. Om
\nPrakash Upadhyaya<\/a> 2002-I-LLJ-241 (SC), the Apex Court dealing with
\nthe daily wagers, opined that once the Labour Court comes to the
\nconclusion that the workman has worked for more than 240 days in the
\npreceding year and Labour Court having come to the conclusion that
\nthe termination is without complying with the provision of Section
\n25-F or Section 6-N of U.P. Industrial Disputes Act, 1947, this makes
\nthe termination per se illegal, then, the workman would be entitled
\nfor back wages and reinstatement from the date of termination itself.\n<\/p>\n
\tLearned
\n\tAdvocate Mr. Dipak C. Raval has placed reliance upon apex court
\n\tdecision in case of Incharge
\n\tOfficer and another Versus Shankar Shetty,
\n\treported in (2010)9 SCC 126 where apex court has considered fact
\n\tthat respondent was engaged as daily wager in 1978, respondent
\n\ttherein worked intermittently for seven years, upto his retrenchment
\n\twhich was about 25 years back and in such case, relief of
\n\treinstatement cannot be justified and considering aforesaid facts
\n\tonly, apex court has granted compensation to workman in lieu of
\n\treinstatement and back wages. Now, looking to facts of this case,
\n\tservice of present respondent workman was terminated as daily wager
\n\tdriver on 26th
\n\tJune, 2002 and he remained in continuous service as daily wager
\n\tdriver from June, 2000 to June, 2002 and dispute has been referred
\n\tto for adjudication before labour court on 23.4.2004 and
\n\tlabour court passed award on 24th
\n\tMarch, 2010. Therefore, it is not oldest case of about 25 years as
\n\thas been considered by apex court in case of Shankar Shetty (supra).
\n\tIt is also necessary to note that in written statement filed by
\n\tpetitioner before labour court, nowhere such contention has been
\n\traised by petitioner establishment that instead of granting
\n\treinstatement, he should be paid reasonable amount of compensation.
\n\tFor that, there must be pleading and evidence is necessary. Not only
\n\tthat but this contention was also not raised by petitioner before
\n\tlabour court at the time of argument that in lieu of reinstatement,
\n\tsome compensation may be given to respondent workman.  Therefore,
\n\tnow for the first time, petitioner cannot be permitted to raise such
\n\tcontention before this court.\n<\/p>\n
As
\n\tregards contention raised by learned advocate Mr. Raval on behalf of
\n\tpetitioner that respondent workman was not appointed after following
\n\trecruitment rules and he is not legally entitled for right of
\n\treinstatement. In case of daily wager, whether any recruitment rules
\n\thave been framed by employer or not, for that, there is no any
\n\tpleading made by petitioner before labour court in its written
\n\tstatement and that has also not been emphasized by petitioner before
\n\tlabour court at the time of hearing. However, this aspect has been
\n\tconsidered by apex court in case of Director,
\n\tFisheries
\n\tTerminal Division versus Bhikhubhai Meghajibhai Chavda, 2010 AIR SCW\n<\/p>\n
\t542. Relevant
\n\tpara 12 and 13 of decision of apex court are quoted as under:\n<\/p>\n
“”12.\t\tThe
\n\tperusal of all these details clearly shows that the appellant alone
\n\twas singled out and discriminated. We have already noted the
\n\tspecific finding of the Labour Court that the appellant had
\n\tfulfilled 240 days in a calendar year before the order of
\n\ttermination. The appellant has also highlighted that he is the sole
\n\tbread earner of his family and his family consists of his old
\n\tmother, wife and two minor sons and a minor daughter. The
\n\tabove-mentioned chart also shows that identical awards passed in the
\n\tcase of Mast Ram, Rajesh, Paramjit and Amarjit was upheld by the
\n\tHigh Court and the award in favour of the appellant alone was
\n\tquashed by the High Court in the second round of litigation. Though,
\n\tit was contended that the initial appointment of the appellant was
\n\tcontrary to the recruitment rules and constitutional scheme of
\n\temployment, admittedly, the said objection was not raised by the
\n\tDepartment either before the Labour Court or before the High Court
\n\tat the first instance. It was only for the first time that they
\n\traised the said issue before the High Court when the matter was
\n\tremitted to it that too the same was raised only during the
\n\targuments. In such circumstances, the   High   Court   ought   not
\n\tto   have interfered with the factual finding rendered by the Labour
\n\tCourt and in view of the different treatment to other similarly
\n\tplaced workmen the Department ought not to have challenged the order
\n\tof the Labour Court. In addition to the above infirmities, the
\n\tappellant has also pointed out that one Gurbax Singh who was engaged
\n\tsubsequent to   the   appellant   on casual   basis   has challenged
\n\this termination order, which was quashed by the Labour Court;
\n\tinterestingly the Department did not challenge the award of the
\n\tLabour Court by filing writ petition. It was also highlighted by the
\n\tappellant that on the basis of the award, Gurbax singh was not only
\n\ttaken back in service but his services were regularized w.e.f.
\n\t01.07.2004.\n<\/p>\n
\t13.\t\tThe next
\n\tcontention of the learned counsel for the appellant is that the
\n\trespondent had not worked for 240 days during the preceding twelve
\n\tmonths on daily wages and, therefore, the respondent cannot claim
\n\tany protection under the provisions of Industrial Disputes Act,
\n\t1947. The case of the respondent before the labour court was that as
\n\the had completed working for more than 240 days in a year, the
\n\tpurported order of retrenchment is illegal, as conditions precedent
\n\tas contained in Section 25F of the Industrial Disputes Act, 1947
\n\twere not complied with.\n<\/p>\n
\tIn
\n\tview of aforesaid observations made by apex court and considering
\n\tfacts of this case, here also, respondent workman has not prayed for
\n\tregularization of his service and to make him permanent in
\n\testablishment but he was merely seeking restoration of his status of
\n\tdaily wager driver and nothing more than that was sought by him
\n\tbefore labour court. Therefore, contentions raised by learned
\n\tadvocate Mr. Raval for petitioner cannot be accepted and same are
\n\taccordingly rejected.\n<\/p>\n
Daily
\n\twager is also covered by definition of workman under section 2(s) of
\n\tID Act, 1947 which starts with word any
\n\tperson and not excluding daily wager. Condition
\n\tPrecedent to retrench workman under sec. 25F of ID Act, 1947 is
\n\tsquarely applicable to facts of this case which has not been
\n\tfollowed by petitioner and it has been violated by petitioner and it
\n\tbeing condition precedent, non compliance thereof has rendered such
\n\ttermination void, ab initio. As per evidence of witness for
\n\tpetitioner itself, work of daily wager driver is available because
\n\tin respect of vehicle which is in working condition,
\n\tappointment of regular driver has not been made and new daily wager
\n\tdriver has been engaged by petitioner as stated by petitioner’s
\n\twitness at Exh. 15 and at that time, before engaging fresh daily
\n\twager driver, respondent was not offered work by petitioner then
\n\tsection 25H of ID Act, 1947 is also violated by petitioner.\n<\/p>\n
In
\n\tcase of Anoop
\n\tSharma Versus Executive Engineer, Public Health Division No.1,
\n\tPanipat (Haryana)
\n\treported in 2010-II-CLR page 1, this aspect has been examined by
\n\tapex court.   Relevant discussion made by Hon’ble apex court while
\n\tconsidering number of decisions on subject in para 13, 14, 15, 16,
\n\t17, 19 is quoted as under:\n<\/p>\n
“13.\n<\/p>\n
\t  An analysis of the above reproduced provisions shows that no
\n\tworkman employed in any industry who has been in continuous service
\n\tfor not less than one year under an employer can be retrenched by
\n\tthat employer until the conditions enumerated in Clauses (a) and (b)
\n\tof Section 25-F of the Act are satisfied. In terms of Clause (a),
\n\tthe employer is required to give to the workman one month’s notice
\n\tin writing indicating the reasons for retrenchment or pay him wages
\n\tin lieu of the notice. Clause (b) casts a duty upon the employer to
\n\tpay to the workman at the time of retrenchment, compensation
\n\tequivalent to fifteen days’ average pay for every completed year of
\n\tcontinuous service or any part thereof in excess of six months. This
\n\tCourt has repeatedly held that Section 25-F(a) and (b) of the Act is
\n\tmandatory and non-compliance thereof renders the
\n\tretrenchment of an employee nullity – State of Bombay v. Hospital
\n\tMazdoor Sabha AIR<\/a> 1960 SC 610, Bombay Union of Journalists v. State
\n\tof Bombay<\/a> (1964) 6 SCR 22, State Bank of India v. N. Sundara Money<\/a>
\n\t(1976) 1 SCC 822, Santosh Gupta v. State Bank of Patiala<\/a> (1980) 3
\n\tSCC 340, Mohan Lal v. Management of M\/s. Bharat Electronics
\n\tLtd.<\/a> (1981) 3 SCC 225, L. Robert D’Souza v. Executive Engineer,
\n\tSouthern Railway<\/a> (1982) 1 SCC 645, Surendra Kumar Verma v.
\n\tIndustrial Tribunal (1980) 4 SCC 443, Gammon India Ltd. v. Niranjan
\n\tDas<\/a> (1984) 1 SCC 509, Gurmail Singh v. State of Punjab<\/a> (1991) 1 SCC
\n\t189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. This Court
\n\thas used different expressions for describing the consequence of
\n\tterminating a workman’s service \/ employment \/ engagement by way of
\n\tretrenchment without complying with the mandate of Section 25-F of
\n\tthe Act. Sometimes it has been termed as ab initio void, sometimes
\n\tas illegal per se, sometimes as nullity and sometimes as non est.
\n\tLeaving aside the legal semantics, we have no hesitation to hold
\n\tthat termination of service of an employee by way of retrenchment
\n\twithout complying with the requirement of giving one month’s notice
\n\tor pay in lieu thereof and compensation in terms of Section 25-F(a)
\n\tand (b) has the effect of rendering the action of the employer as
\n\tnullity and the employee is entitled to continue in employment as if
\n\this service was not
\n\tterminated.\n<\/p>\n
14.
\n\t  The question whether the offer to pay wages in lieu of one month’s
\n\tnotice and retrenchment compensation in terms of Clauses (a) and (b)
\n\tof Section 25-F must accompany the letter of termination of service
\n\tby way of retrenchment or it is sufficient that the employer should
\n\tmake a tangible offer to pay the amount of wages and compensation to
\n\tthe workman before he ask to go was considered in National Iron and
\n\tSteel Company Ltd. v. State of West Bengal<\/a> (1967) 2 SCR 391. The
\n\tfacts of that case were that the workman was given notice dated
\n\t15.11.1958 for termination of his service with effect from
\n\t17.11.1958. In the notice, it was mentioned that the workman would
\n\tget one month’s wages in lieu of notice and he was asked to collect
\n\this dues from the cash office on 20.11.1958 or thereafter during the
\n\tworking hours. The argument of the Additional Solicitor General that
\n\tthere was sufficient compliance of Section 25-F was rejected by this
\n\tCourt by making the following observations:\n<\/p>\n
\t“The third point
\n\traised by the Additional Solicitor-General is also not one of
\n\tsubstance. According to him, retrenchment  could only be struck down
\n\tif it was mala fide or if it was shown  that there was victimization
\n\tof the workman etc. Learned    counsel further argued that the
\n\tTribunal had gone wrong in  holding that the retrenchment was
\n\tillegal as Section 25-F of the  Industrial Disputes Act had not been
\n\tcomplied with. Under that    section, a workman employed in any
\n\tindustry should not be  retrenched until he had been given one
\n\tmonth’s notice in    writing indicating the reasons for retrenchment
\n\tand the period  of notice had expired, or the workman had been paid
\n\tin lieu of  such notice, wages for the period of the notice. The
\n\tnotice in  this case bears the date November 15, 1958. It is to the
\n\teffect   that the addressee’s services were terminated with effect
\n\tfrom  17th November and that he would get one month’s wages in  lieu
\n\tof notice of termination of his service. The workman was  further
\n\tasked to collect his dues from the cash office on  November 20, 1958
\n\tor thereafter during the working hours.  Manifestly, Section 25-F,
\n\thad not been complied with under  which it was incumbent on the
\n\temployer to pay the workman,  the wages for the period of the notice
\n\tin lieu of the notice. That  is to say, if he was asked to go
\n\tforthwith he had to be paid at the  time when he was asked to go and
\n\tcould not be asked to collect  his dues afterwards. As there was no
\n\tcompliance with Section  25-F, we need not consider the other points
\n\traised by the   learned counsel.”\n<\/p>\n
\t15. In State Bank of
\n\tIndia v. N. Sundara Money<\/a> (supra), the Court emphasised that the
\n\tworkman cannot be retrenched without payment, at the time of
\n\tretrenchment, compensation computed in terms of Section 25-F(b).\n<\/p>\n
16.\tThe
\n\tlegal position has been beautifully summed up in Pramod Jha v. State
\n\tof Bihar (supra) in the following words:\n<\/p>\n
 “The
\n\tunderlying object of Section 25-F is twofold. Firstly, a  retrenched
\n\temployee must have one month’s time available at  his disposal to
\n\tsearch for alternate employment, and so, either   he should be given
\n\tone month’s notice of the proposed  termination or he should be paid
\n\twages for the notice period. Secondly, the workman must be paid
\n\tretrenchment  compensation at the time of retrenchment, or before,
\n\tso that  once having been retrenched there should be no need for him
\n\tto  go to his employer demanding retrenchment compensation and  the
\n\tcompensation so paid is not only a reward earned for his  previous
\n\tservices rendered to the employer but is also a  sustenance to the
\n\tworker for the period which may be spent in searching for another
\n\temployment. Section 25-F nowhere  speaks of the retrenchment
\n\tcompensation being paid or  tendered to the worker along with one
\n\tmonth’s notice; on the contrary, clause (b) expressly provides for
\n\tthe payment of  compensation being made at the time of retrenchment
\n\tand by  implication it would be permissible to pay the same before
\n\tretrenchment. Payment or tender of compensation after the time  when
\n\tthe retrenchment has taken effect would vitiate the retrenchment and
\n\tnon-compliance with the mandatory  provision which has a beneficial
\n\tpurpose and a public policy  behind it would result in nullifying
\n\tthe retrenchment.”\n<\/p>\n
17.
\n\t  If the workman is retrenched by an oral order or communication or
\n\the is simply asked not to come for duty, the employer will be
\n\trequired to lead tangible and substantive evidence to prove
\n\tcompliance of Clauses (a) and (b) of Section 25-F of the Act.\n<\/p>\n
18.
\n\t  The stage is now set for considering whether the respondent had
\n\toffered compensation     to   the   appellant   before
\n\tdiscontinuing    his engagement\/employment, which amounts to
\n\tretrenchment within the meaning of Section 2(oo) of the Act.
\n\tIn his statement, the appellant categorically stated that before
\n\tdiscontinuing his service, the respondent did not give him notice
\n\tpay and retrenchment compensation.              Shri Ram Chander,
\n\twho appeared as the sole witness on behalf of the respondent stated
\n\tthat the compensation amounting to Rs.5,491\/- was offered to the
\n\tappellant along with letter Ext. M-1, but he refused to accept the
\n\tsame. The respondent did not examine any other witness to
\n\tcorroborate the testimony of Ram Chander and no contemporaneous
\n\tdocument was produced to prove that the compensation was offered to
\n\tthe appellant on 25.4.1998. Not only this, the respondent did not
\n\texplain as to why the demand draft was sent to the appellant after
\n\tmore than three months of his alleged refusal to accept the
\n\tcompensation on 25.4.1998.        If there was any grain of truth in
\n\tthe respondent’s assertion that the compensation was offered to the
\n\tappellant on 25.4.1998 and he refused to accept the same, there
\n\tcould be no justification for not sending the demand draft by post
\n\timmediately after the appellant’s refusal to accept the offer of
\n\tcompensation.        The minimum which the respondent ought to have
\n\tdone was to produce the letter with which draft was sent at the
\n\tappellant’s residence. The contents of that letter would have shown
\n\twhether the offer of compensation was made to the appellant on
\n\t25.4.1998 and he refused to accept the same. However, the fact of
\n\tthe matter is that no such document was produced. Therefore, we are
\n\tconvinced that the finding recorded by the Labour Court on the issue
\n\tof non- compliance of Section 25-F of the Act was based on correct
\n\tappreciation of the pleadings and evidence of the parties and the
\n\tHigh Court committed serious error by setting aside the award of
\n\treinstatement.\n<\/p>\n
19.
\n\t  The judgment of the Constitution Bench in Secretary, State of
\n\tKarnataka vs. Uma Devi (supra) and other decisions in which this
\n\tCourt considered the right of casual, daily wage, temporary
\n\tand ad hoc employees to be regularised\/continued in service or paid
\n\tsalary in the regular time scale, appears to have unduly influenced
\n\tthe High Court’s approach in dealing with the appellant’s challenge
\n\tto the award of the Labour Court. In our view, none of those
\n\tjudgments has any bearing on the interpretation of Section 25- F of
\n\tthe Act and employer’s obligation to comply with the conditions
\n\tenumerated in that section.\n<\/p>\n
\t\tIn
\n\tview of aforesaid observations made by apex court and considering
\n\tfacts of present case, petitioner has committed breach of section
\n\t25H also as per evidence of witness for petitioner at Exh. 15.
\n\tFinding of labour court that workman has remained in service and
\n\tincluding public holidays and weekly holidays, he has completed 240
\n\tdays continuous service within 12 months preceding date of
\n\ttermination, such finding is absolutely correct and legal finding
\n\tand there is no distinction made by apex court in case of    Workmen
\n\tof American Express International Banking Corporation Versus
\n\tManagement of American International Banking Corporation reported in
\n\tAIR 1986 SC 458  that weekly off  and public holidays is to be
\n\tincluded only in case of temporary employee and not to be included
\n\tin case of daily wager. There is no such distinction in law to any
\n\tcontinuous service which is to be established by workman.  And
\n\tmoment workman satisfies continuous service within meaning of
\n\tsection 25B(1) or (2), then, he is entitled for benefit of section
\n\t25F of ID Act, 1947. Therefore, labour court has rightly granted
\n\trelief of reinstatement as daily wager driver in favour of
\n\trespondent workman  and in doing so, labour court has not committed
\n\tany error which would require interference of this court in exercise
\n\tof power under Article 227 of Constitution of India. Offer has been
\n\tmade by petitioner in its written statement filed by petitioner
\n\tbefore labour court after dispute was referred for adjudication to
\n\tlabour court. Fresh daily wager driver was appointed by petitioner
\n\tafter termination of service of present respondent workman and at
\n\tthat time also, no offer was made by petitioner to respondent before
\n\tengaging or appointing fresh daily wager driver. Therefore labour
\n\tcourt has rightly held that petitioner has violated sec. 25F and 25H
\n\tof ID Act, 1947 and has rightly set aside termination
\n\tof service of respondent and in doing so, no error has been
\n\tcommitted by labour court, Surendranagar which would require
\n\tinterference of this court in exercise of powers under Article 227
\n\tof Constitution of India. Hence, there is no substance in this
\n\tpetition and same is, therefore, dismissed in limine.\n<\/p>\n
(H.K.\n<\/p>\n
Rathod, J.)<\/p>\n
Vyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Medical vs Dashrathsinh on 10 May, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/4258\/2011 55\/ 55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4258 of 2011 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-221972","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMedical vs Dashrathsinh on 10 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/medical-vs-dashrathsinh-on-10-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Medical vs Dashrathsinh on 10 May, 2011 - 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