HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - C No. - 15967 of 1998 Petitioner :- [ENTITY] Respondent :- [ENTITY] & Others Petitioner Counsel :- Smt. [ENTITY] Respondent Counsel :- C.S.C. Hon'ble [ENTITY],J.
Heard learned counsel for the petitioner and learned standing counsel for the respondents.
This writ petition is directed against award dated 03.10.1997 given by Presiding Officer, Labour Court, U.P. Agra in [CASE NUMBER]. The matter which was referred to the labour court was as to whether action of employer respondent No.3, Executive Engineer, Rashtriya Marg Khand, P.W.D., Mathura terminating the services of its workman petitioner w.e.f. 20.11.1987 was just and valid or not.
The workman contended that he had worked from 27.01.1987 to 26.11.1987, hence his termination/ retrenchment was illegal as no retrenchment compensation as required by [SECTION] of [ACT] had been paid to him even though he had worked for 240 days. The labour court held that petitioner had not completed one year hence provisions of [SECTION] of [ACT] were not applicable. In my opinion, the labour court was quite correct in its interpretation. Under [SECTION] of [ACT], continuous service has been defined as a period of 12 calender months during which the workman has actually worked for not less than 240 days and according to [SECTION] of [ACT], retrenchment compensation is necessary if a workman has been in continuous service for not less than one year. The Supreme Court in "[PRECEDENT] has held that there is a difference between [SECTION] of [ACT] and its corresponding provision under [ACT] i.e. [SECTION] The definition of continuous service given in [ACT] is pari materia with the definition of the same given in [SECTION] and [SECTION] of [ACT] as it stood prior to 1964 Amendment. Interpreting the unamended [ACT] (which is pari materia with the current [ACT]), the Supreme Court in [PRECEDENT] held that the workman must have worked for 240 days in 12 calender months. If 240 days were completed but during a period which was less than 12 calender months then the provision was not attracted and requirement of payment of compensation before retrenchment was not applicable. However, in 1964 the provisions of [ACT] were amended by [ACT]. The Supreme Court in [PRECEDENT] has noticed the difference of the relevant provision in [ACT] before and after the Amendment of 1964. The facts of the said case were that the two workmen [ENTITY] and [ENTITY] had worked from May, 1974 to January, 1975 for 258 and 266 days respectively. The Supreme Court held that the period between two dates was not one year. It further held that the two workmen would not have been entitled to any relief under the unamended provisions of [ACT], however after the amendment of 1964 substituting [SECTION] and deleting [SECTION], both the workmen became entitled to the protection of [SECTION] of the [ACT].
Paragraphs 8 & 9 of the aforesaid authority are quoted below:
"8. The cases of [ENTITY] and [ENTITY] were treated by the Labour Court as distinct from the cases of all the other appellants on the ground that, though they had worked for more than two hundred and forty days in the preceding twelve months, they had not been in employment for one year. It appears that [ENTITY] and [ENTITY] were in the employment of the Bank from May 4, 1974 to January 29, 1975 and had worked for 258 and 266 days respectively during that period. As the period from May 4, 1974 to January 29, 1975 was not one year, it was conceded before the Labour Court that there was no violation of the provisions of [SECTION] of the [ACT]. Before us, the concession was questioned and it was argued that there was non-compliance with the requirements of [SECTION] of the Act. Since the facts were not disputed, we entertained the argument and heard the counsel on the question. The concession was apparently based on the decision of this Court in [PRECEDENT] That decision was rendered before [SECTION], which defines continuous service for the purposes of [SECTION] of the [ACT] was recast by [ACT]. The learned Counsel for the employer submitted that the amendment made no substantial difference. Let us take a look at the statutory provisions. [SECTION], then and now, provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until certain conditions are fulfilled. [SECTION] 's marginal title is 'Definition of continuous Service'. To the extent that it is relevant [SECTION] as it now reads is as follows :
Where a workman is not in continuous service for a period of one year or six months, he shall be deemed to be in continuous service under an employer
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to 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 employed below ground in a mine; and
(ii) two hundred and forty days in any other case;
Explanation
The provision appears to be plain enough. [SECTION] requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present [SECTION] steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need not be. That; appears to be the plain meaning without gloss from any source.
9. Now, [SECTION] was not always so worded. Prior to [ACT], it read as follows :-
For the purposes of [SECTION] and [SECTION], a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year's continuous service in the industry.
Explanation.- "
The difference between old 25-B and present 25-B is patent. The clause "where a workman is not in continuous service for a period of one year" with which present [SECTION] so significantly begins, was equally significantly absent from old [SECTION] Of the same degree of significance was the circumstance that prior to [ACT] the expression "Continuous Service" was separately defined by [SECTION] as follows :-
(eee) 'continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or lock-out or a cessation of work which is not due to any fault on the part of the workman;
[SECTION] was omitted by the same [ACT] which recast [SECTION] as it read prior to [ACT], in the light of the then existing [SECTION], certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one year's completed service so as to attract the provisions of [SECTION] That precisely was what was decided by this Court in [PRECEDENT] (supra). The Court said :
On the plain terms of the [SECTION] only a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. 'Continuous Service' is defined in [SECTION] as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. What is meant by "one year of continuous service' has been defined in [SECTION] Under this section a workman who during a period of twelve calendar months has actually worked in an industry for not less 240 days shall be deemed to have completed service in the industry The position (therefore) is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of [SECTION] Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more.
[ACT] has drastically changed the position. [SECTION] has been repealed and [SECTION] now begins with the clause "where a workman is not in continuous service for a period of one year". These changes brought about by [ACT] appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is 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 the employer for one whole year. So we hold that [ENTITY] and [ENTITY] are in the same position as the other appellants."
Accordingly, the view of the labour court in the instant case is perfectly correct. As provisions of [ACT] are pari materia with relevant provisions of [ACT] before their amendment in 1964 hence by virtue of aforesaid 1963 authority as explained in 1981 authority petitioner not having completed 12 calender months service was not entitled to any retrenchment compensation.
However, as held by the Supreme Court in "[PRECEDENT] even if the workman is not entitled to any relief and employer is not at fault still some damages/ compensation may be awarded to the workman. Accordingly, it is directed that respondent No.3 shall pay Rs.25,000/- to the petitioner workman or deposit the same before the labour court for immediate payment to the petitioner workman within four months failing which 1% per month interest shall be payable thereupon since after four months till actual payment/ deposit/ realisation.
Writ Petition is disposed of accordingly.
Order Date :- 21.9.2012 NLY