MOHD. ALI versus STATE OF H.P. AND OTHERS on 16 April 2018

MOHD. ALI

v.

STATE OF H.P. AND OTHERS

(Civil Appeal No. 3803 of 2018)

APRIL 16, 2018

[R. K. AGRAWAL AND S. ABDUL NAZEER, JJ.]

Industrial Disputes Act, 1947 – s. 25F – Condition precedentto retrenchment – Appellant was engaged as casual labour in theagriculture farm on muster roll basis – He worked there from 1980to 1991 and completed 240 days in a calendar year, during theyears 1980, 1981, 1982 and 1986 to 1989 – Respondent-State casewas that thereafter in 1991 he abandoned the work withoutinforming and never returned to work – In 2005, appellant maderepresentation before the State u/s. 10 – Pursuant thereto, the Statemade reference to the Industrial Tribunal-cum-Labour Court, whichgave the award and directed the respondent-State to reinstate theappellant in service with seniority and continuity while denying backwages – Writ petition filed by the respondent-State – Award set asideby the High Court – Held: It is an admitted position that though theappellant worked from 1980 to 1991 and completed 240 days in acalendar year, during the years 1980, 1981, 1982 and 1986 to1989 but he worked only for 195 days in the year 1990 and 19.5days in the immediate preceding year of his dismissal which is belowthe required 240 days of working in the period of 12 calendarmonths preceding the date of dismissal, therefore, he is not entitledto take the benefits of the provisions of s.25F of the Act – HighCourt was right in setting aside the award passed by Tribunal.

Industrial Disputes Act, 1947 – Enactment of the Act – Object of.

Dismissing the appeal, the Court

HELD: 1. The Industrial Disputes Act is a welfarelegislation. The intention behind its enactment was to protectthe employees from arbitrary retrenchments. For this reason only,in a case of retrenchment of an employee who has worked for ayear or more, Section 25F provides a safeguard in the form ofgiving one month’s prior notice indicating the reasons for727

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Aretrenchment to the employee and also provides for wages forthe period of notice. Section 25B of the Act provides that when aperson can be said to have worked for one year and the veryreading of the said provisions makes it clear that if a person hasworked for a period of 240 days in the last preceding year, he isdeemed to have worked for a year. The theory of 240 days forBcontinuous service is that a workman is deemed to be incontinuous service for a period of one year, if he, during the periodof twelve calendar months preceding the date of retrenchmenthas actually worked under the employer for not less than 240days. [Para 9] [733-C-E]

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2. Though the appellant worked as such till 1991 underdifferent work/schemes i.e. Rabi and Kharif and completed 240days in a calendar year only during the years 1980, 1981, 1982and 1986 to 1989 but he worked only for 195 days in the year1990 and 19.5 days in the immediate preceding year of hisDdismissal which is below the required 240 days of working in theperiod of 12 calendar months preceding the date of dismissal,therefore, he is not entitled to take the benefits of the provisionsof Section 25F of the Act. [Para 12] [737-G]

Surendra Kumar Verma and Others v. CentralEGovernment Industrial Tribunal-Cum-Labour Court,New Delhi and Another (1980) 4 SCC 443 : [1981] 1SCR 789 ; Mohan Lal v. Management of M/s BharatElectronics Limited (1981) 3 SCC 225 : [1981] 3 SCR518 – relied on.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3803of 2018.G

From the Judgment and Order dated 18.11.2013 of the High Courtof Himachal Pradesh at Shimla in LPA No. 209 of 2011.

M. C. Dhingra, Ashwin Kr. Gupta, Gaurav Dhingra, Piyush KantRoy, Advs. for the Appellant.

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MOHD. ALI v. STATE OF H.P. AND OTHERS

D. K. Thakur, AAG, Varinder Kumar Sharma, Adv. for theRespondents.

The Judgment of the Court was delivered by

R. K. AGRAWAL J. 1. Leave granted.

2. The present appeal has been filed against the impugned judgmentand order dated 18.11.2014 passed by the Division Bench of the HighCourt of Himachal Pradesh at Shimla in LPA No. 209 of 2011 wherebythe High Court dismissed the appeal filed by the appellant herein againstthe judgment and order dated 07.07.2010 passed by learned single Judgein CWP No. 3761 of 2009.

3. Brief Facts:-

(a) Mohd. Ali-the appellant herein was engaged as CasualLabourer in the Agriculture Seed Multiplication Farm Bhagni, Dist.Sirmor, Himachal Pradesh on Muster roll basis during the year 1980.He worked as such till the year 1991 under different work schemes i.e.,Rabi and Kharif and completed 240 days in a calendar year during theyears 1980, 1981, 1982 and 1986 to 1989.

(b) It is the case of the respondents that during the period ofengagement, the appellant had worked as follows:- S .N o . Y e ar N u m b e r o f d a y s w o r k e d 1 . 1 9 8 0 2 9 9 2 . 1 9 8 1 2 9 7. 5 3 . 1 9 8 2 2 8 9. 5 4 . 1 9 8 3 1 2 6 5 . 1 9 8 4 4 . 5 6 . 1 9 8 5 2 2 7 7 . 1 9 8 6 2 9 2 8 . 1 9 8 7 2 8 4. 5 9 . 1 9 8 8 2 8 2 1 0. 1 9 8 9 2 5 8 1 1. 1 9 9 0 1 9 5 1 2. 1 9 9 1 1 9 .5

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It is further the case of the respondents that thereafter heabandoned the work without informing the Incharge Seed MultiplicationFarm Bhagani and never returned to work.

(c) In the year 2005, the appellant herein made a representationto the State Government for making Reference under Section 10 of theBIndustrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). Inpursuance of the Representation made by the appellant herein, the StateGovernment made a Reference being No. 9 of 2005 to the IndustrialTribunal-cum-Labour Court, Shimla.

(d) Learned Presiding Judge, gave the Award dated 23.04.2009Cin favour of the appellant herein and directed the respondent-State toreinstate the appellant in service with seniority and continuity while denyingthe back wages.

(e) Being aggrieved, respondent-State filed a writ petition beingDCWP No. 3761 of 2009 before the High Court at Shimla. Learned singleJudge of the High Court, by judgment and order dated 07.07.2010,allowed the said writ petition and set aside the Award dated 23.04.2009.

(f) Being aggrieved by the order passed by learned single Judge,the appellant preferred a Letters Patent Appeal before the High Court.EThe Division Bench of the High Court, vide judgment and order dated18.11.2014 dismissed the Letters Patent Appeal while upholding thedecision of learned single Judge.

(g) Aggrieved by the judgment and order passed by the DivisionBench of the High Court, the appellant has preferred this appeal by wayFof special leave before this Court.

4. Heard Mr. M.C. Dhingra, learned counsel for the appellantand Mr. D.K. Thakur, learned Additional Advocate General for therespondent-State and perused the records.

GPoint(s) for consideration:-

5. The short point that arises for consideration in the present caseis whether in the present facts and circumstances of the instant case,the impugned order of the High Court calls for any interference?

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Rival contentions:-

6. At the outset, learned counsel appearing on behalf of theappellant argued that the dismissal of the appellant was in violation ofthe provisions of Sections 25F read with Section 25B of the Act. Learnedcounsel further argued that the High Court misinterpreted Section 25Balong with Section 25F of the Act. It was further submitted that it is notnecessary that a workman has to complete the 240 days’ period duringthe period of 12 months immediately preceding his disengagement. Rather,he argued that inasmuch as once the appellant completed 240 days ofservice in any calendar year of his employment then he becomes entitledfor the benefits of provisions of Section 25F of the Act.

7. Learned counsel appearing for the respondent-State submittedthat the service of the appellant herein was not retrenched but the appellantherein abandoned the work himself. Further, it was submitted that theappellant herein approached the State Government after a delay of morethan 12 (twelve) years which was not properly explained by the appellantherein. Hence, the appellant herein was negligent qua his act and nointerference is sought for by this Court in the matter.

Discussion:-

8. At this juncture, in order to appreciate the matter in controversyit is necessary to reproduce relevant portion of Section 25F and Section25B of the Act which are as follows:

“25F. Conditions precedent to retrenchment of workmen.—No workman employed in any industry who has been incontinuous service for not less than one year under an—employer shall be retrenched by that employer until (a) the workman has been given one month’s notice in writingindicating the reasons for retrenchment and the period of noticehas expired, or the workman has been paid in lieu of such notice,wages for the period of the notice;

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(b) the workman has been paid, at the time of retrenchment,compensation which shall be equivalent to fifteen days’ averagepay for every completed year of continuous service or any partthereof in excess of six months; and A

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(c) notice in the prescribed manner is served on the appropriateGovernment or such authority as may be specified by theappropriate Government by notification in the Official Gazette.

25B. Definition of continuous service.- For the purposes ofthis Chapter,- B

(1) a workman shall be said to be in continuous service for aperiod if he is, for that period, in uninterrupted service, includingservice which may be interrupted on account of sickness orauthorised leave or an accident or a strike which is not illegal, ora lock- out or a cessation of work which is not due to any fault onthe part of the workman; C

(2) where a workman is not in continuous service within themeaning of clause (1) for a period of one year or six months, heshall be deemed to be in continuous service under an employer- (a)for a period of one year, if the workman, during a periodDof twelve calendar months preceding the date with referenceto which calculation is to be made, has actually worked under-the employer for not less than

(i) one hundred and ninety days in the case of a workman employedbelow ground in a mine; and E(ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period ofsix calendar months preceding the date with reference to whichcalculation is to be made, has actually worked under the employerfor not less than—

(i) ninety- five days, in the case of a workman employed belowground in a mine; and F

(ii) one hundred and twenty days, in any other case.

Explanation.- For the purposes of clause (2), the number of dayson which a workman has actually worked under an employer shallinclude the days on which- G

(i) he has been laid-off under an agreement or as permitted bystanding orders made under the Industrial Employment (StandingOrders) Act, 1946 (20 of 1946 ), or under this Act or under anyother law applicable to the industrial establishment; H

(ii) he has been on leave with full wages, earned in the previousyears;

(iii) he has been absent due to temporary disablement caused byaccident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so,however, that the total period of such maternity leave does notexceed twelve weeks.”

9. It is a well known fact that the Industrial Disputes Act is awelfare legislation. The intention behind the enactment of this Act wasto protect the employees from arbitrary retrenchments. For this reasononly, in a case of retrenchment of an employee who has worked for ayear or more, Section 25F provides a safeguard in the form of giving onemonth’s prior notice indicating the reasons for retrenchment to theemployee and also provides for wages for the period of notice. Section25B of the Act provides that when a person can be said to have workedfor one year and the very reading of the said provisions makes it clearthat if a person has worked for a period of 240 days in the last precedingyear, he is deemed to have worked for a year. The theory of 240 daysfor continuous service is that a workman is deemed to be in continuousservice for a period of one year, if he, during the period of twelve calendarmonths preceding the date of retrenchment has actually worked underthe employer for not less than 240 days.

10. In Surendra Kumar Verma and Others vs. CentralGovernment Industrial Tribunal-Cum-Labour Court, New Delhi andAnother (1980) 4 SCC 443, a three-Judge Bench of this Court has verycategorically dealt with the theory of 240 days as contemplated underSection 25B of the Act. The relevant paragraphs of the judgment arereproduced hereinbelow:- “8….The provision appears to be plain enough. Section 25-Frequires that a workman should be in continuous service for notless than one year under an employer before that provision applies.While so, present Section 25-B(2) steps in and says that even if aworkman has not been in continuous service under an employerfor a period of one year, he shall be deemed to have been in suchcontinuous service for a period of one year, if he has actuallyworked under the employer for 240 days in the preceding periodof twelve months. There is no stipulation that he should have been A

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in employment or service under the employer for a whole periodof twelve months. In fact, the thrust of the provision is that heneed not be. That appears to be the plain meaning without glossfrom any source.

9. Now, Section 25-B was not always so worded. Prior to Act 36of 1964, it read as follows:

“For the purposes of Sections 25-C and 25-F, a workman who,during a period of twelve calendar months, has actually workedin an industry for not less than two hundred and forty days shallbe deemed to have completed one year of continuous servicein the industry.

Explanation.—….

The difference between old Section 25-B and present Section25-B is patent. The clause “where a workman is not incontinuous service … for a period of one year” with whichpresent Section 25-B(2) so significantly begins, was equallysignificantly absent from old Section 25-B. Of the same degreeof significance was the circumstance that prior to Act 36 of1964 the expression “continuous service” was separately definedby Section 2(eee) as follows:

“(eee) ‘continuous service’ means uninterrupted service,and includes service which may be interrupted merely onaccount of sickness or authorised leave or an accident or astrike which is not illegal, or lock-out or a cessation of workwhich is not due to any fault on the part of the workman;”

Section 2(eee) was omitted by the same Act 36 of 1964 whichrecast Section 25-B. Section 25-B as it read prior to Act 36 of1964, in the light of the then existing Section 2 (eee), certainly lentitself to the construction that a workman had to be in the serviceof the employer for a period of one year and should have workedfor not less than 240 days before he could claim to have completedone year’s completed service so as to attract the provisions ofSection 25-F. That precisely was what was decided by this Courtin Sur Enamel and Stamping Works Ltd. v. Workmen. The courtsaid:

“On the plain terms of the Section 25-F only a workman whohas been in continuous service for not less than one year underan employer is entitled to its benefit. ‘Continuous service’ isdefined in Section 2(eee) as meaning uninterrupted service,and includes service which may be interrupted merely onaccount of sickness or authorised leave or an accident or astrike which is not illegal or a lock-out or a cessation of workwhich is not due to any fault on the part of the workman. Whatis meant by ‘one year of continuous service’ has been definedin Section 25-B. Under this section a workman who during aperiod of twelve calendar months has actually worked in anindustry for not less than 240 days shall be deemed to havecompleted service in the industry. . . . The position (therefore)is that during a period of employment for less than 11 calendarmonths these two persons worked for more than 240 days. Inour opinion that would not satisfy the requirement of Section25-B. Before a workman can be considered to have completedone year of continuous service in an industry it must be shownfirst that he was employed for a period of not less than 12calendar months and, next that during those 12 calendar monthshad worked for not less than 240 days. Where, as in the presentcase, the workmen have not at all been employed for a periodof 12 calendar months it becomes unnecessary to examinewhether the actual days of work numbered 240 days or more.”

Act 36 of 1964 has drastically changed the position. Section 2(eee)has been repealed and S. 25-B(2) now begins with the clause“where a workman is not in continuous service . . . for a period ofone year”. These changes brought about by Act 36 of 1964 appearto be clearly designed to provide that a workman who has actuallyworked under the employer for not less than 240 days during aperiod of twelve months shall be deemed to have been incontinuous service for a period of one year whether or not he hasin fact been in such continuous service for a period of one year. Itis enough that he has worked for 240 days in a period of 12 months;it is not necessary that he should have been in the service of theemployer for one whole year. So we hold that Usha Kumari andMadhu Bala are in the same position as the other appellants.”

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A11. Further, this Court, in Mohan Lal vs. Management of M/sBharat Electronics Limited (1981) 3 SCC 225, in paragraphs 10 and12 held as under:- “10. It was, however, urged that Section 25-F is not attracted inthis case for an entirely different reason. Mr Markendeyacontended that before Section 25-F is invoked, the condition ofeligibility for a workman to complain of invalid retrenchment mustbe satisfied. According to him unless the workman has put incontinuous service for not less than one year his case would notbe governed by Section 25-F……

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12. Sub-section (2) incorporates another deeming fiction for anentirely different situation. It comprehends a situation where aworkman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall bedeemed to be in continuous service under an employer for a periodof one year or six months, as the case may be, if the workmanduring the period of 12 calendar months just preceding the datewith reference to which calculation is to be made, has actuallyworked under that employer for not less than 240 days. Sub-section(2) specifically comprehends a situation where a workman is notin continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a casehe is deemed to be in continuous service for a period of one yearif he satisfies the conditions in sub-clause (a) of clause (2). Theconditions are that commencing (sic) the date with reference towhich calculation is to be made, in case of retrenchment the dateof retrenchment, if in a period of 12 calendar months just precedingsuch date the workman has rendered service for a period of 240days, he shall be deemed to be in continuous service for a periodof one year for the purposes of Chapter V-A. It is not necessaryfor the purposes of clause (2)(a) that the workman should be inservice for a period of one year. If he is in service for a period ofone year and that if that service is continuous service within themeaning of clause (1) his case would be governed by clause (1)and his case need not be covered by clause (2). Clause (2)envisages a situation not governed by clause (1). And clause (2)(a)provides for a fiction to treat a workman in continuous service fora period of one year despite the fact that he has not rendered C

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uninterrupted service for a period of one year but he has renderedservice for a period of 240 days during the period of 12 calendarmonths counting backwards and just preceding the relevant datebeing the date of retrenchment. In other words, in order to invokethe fiction enacted in clause (2)(a) it is necessary to determinefirst the relevant date i.e. the date of termination of service whichis complained of as retrenchment. After that date is ascertained,move backward to a period of 12 months just preceding the dateof retrenchment and then ascertain whether within the period of12 months, the workman has rendered service for a period of 240days. If these three facts are affirmatively answered in favour ofthe workman pursuant to the deeming fiction enacted in clause(2)(a) it will have to be assumed that the workman is in continuousservice for a period of one year and he will satisfy the eligibilityqualification enacted in Section 25-F. On a pure grammaticalconstruction the contention that even for invoking clause (2) ofSection 25-B the workman must be shown to be in continuousservice for a period of one year would render clause (2) otioseand socially beneficial legislation would receive a set back by thisimpermissible assumptions. The contention must first be negativedon a pure grammatical construction of clause (2). And in anyevent, even if there be any such thing in favour of the construction,it must be negatived on the ground that it would render clause (2)otiose. The language of clause (2) is so clear and unambiguousthat no precedent is necessary to justify the interpretation wehave placed on it……”

In view of the aforesaid principles laid down by this Court andalso the categorical findings of the High Court, the contention of theappellant herein is not sustainable in the eyes of law since the provisionsare very clear qua the calculation of period.

12. Further, it is an admitted position that though the appellantworked as such till 1991 under different work/schemes i.e. Rabi andKharif and completed 240 days in a calendar year only during the years1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days inthe year 1990 and 19.5 days in the immediate preceding year of hisdismissal which is below the required 240 days of working in the periodof 12 calendar months preceding the date of dismissal, therefore, he isnot entitled to take the benefits of the provisions of Section 25F of the ABC

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AAct and Division Bench of the High Court was right in dismissing theappeal of the present appellant.

13. In view of the foregoing discussion, we are not inclined tointerfere in the decision passed by the High Court. The appeal is dismissedleaving parties to bear their own cost.

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Ankit Gyan

Appeal dismissed.

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