IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2559 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------- MOTI CEREMIC INDUSTRIES Versus JIVUBEN RUPABHAI -------------------------------------------------------------- Appearance: MR DM Thakkar for PM THAKKAR for Petitioner NOTICE SERVED for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 29/10/1999 ORAL JUDGEMENT Learned advocate Mr. Thakkar is appearing for the petitioner Co. Nobody has appeared for the respondent workman, though served. This Court, while admitting this petition on 28th April, 1989, has granted the interim relief subject to the provisions of section 17B of the Industrial Disputes Act, 1947 ("the ID Act" for short). Nothing rankles more in the human heart than a brooding sense of injustice when only the rich enjoy the law as a luxury and the poor who need it most, cannot have it because its expenses put it beyond their reach. Threat to the existence of free democracy is not imaginary but real because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness. It was the boast of the Augusts that he found Rome of Bricks and left it of marble. But how much nobler will be our boast, when we shall have to say that we found law dear and left it cheap, found it a sealed book and left it a living letter. Justice without power is toothless. Power without justice is ruthless. Justice and power must, therefore, be brought together so that whatever is just may be powerful and whatever is powerful may be just. In the present case, the question has been raised for consideration that whether for getting benefit under section 25F of the ID Act, it is required to have completed 240 days of continuous service by the workman within the period of one year and whether it is not necessary in light of the provisions of section 25B sub clause (1) of the ID Act. The facts of the present case, in short, are that in all, eight workmen were working with the petitioner Co. since more than 12 years on daily wages with the petitioner Co. and their services were terminated with effect from 1st January, 1983 without issuing any show cause notice or retrenchment compensation and without giving any opportunity of hearing to the respondent workmen and, therefore, the respondent workmen issued notice to the petitioner on 14.1.1983 and the petitioner Co. had not given any reply to it and ultimately the complaint was filed by the workmen on 1st August, 1983 before the Government Labour Officer, Rajkot and, thereafter, said dispute was referred by the Assistant Commissioner of Labour, Rajkot to the Labour Court, Rajkot vide order dated 9th January, 1984 being reference No. 285 of 1984 to 292 of 1984. According to the terms of reference, the demand was to reinstate the workmen with full back wages for intervening period. Before the labour court, the workmen have filed statement of claim and the petitioner co. has filed the written statement. Separate references were filed for each workmen. According to the petitioner Co. before the labour court, the concerned department was closed and the production was stopped and by letter dated 1.12.1982, they were discharged from service with effect from 1.1.1983 on account of closure of cups and saucers' department from 1st January, 1983. Another contention raised in the written statement was to the effect that the workmen who have not completed 240 days of service are not entitled to any retrenchment compensation and none of the workmen had completed 240 days of service in respective year and the compensation was offered on 31.12.1982 but they refused to accept it. On behalf of the respondent workmen, one Premaben was examined vide Exh. 13 and on behalf of the opponent, one Chhanabhai was examined vide Exh. 36. The labour Court has considered the detail of working days in paragraph 10 of the award and ultimately, the labour court has come to the conclusion that the petitioner co. has violated the provisions of section 25F of the ID Act and, therefore, the termination order is illegal and deserves to be set aside and ultimately, the labour court has granted reinstatement in service with full back wages for the intervening period with effect from lst January, 1983 by award dated 6th January, 1989. The learned advocate Mr. Thakkar appearing for the petitioner has pointed out that none of the workman had completed 240 days of service in any year and also pointed out that as per section 25B sub clause (2), each workman must complete 240 days in one year and that has not been completed by the workmen and, therefore, the findings and the ultimate conclusion of the labour court is contrary to facts and the said provision and is, therefore, erroneous. Mr. Thakkar, the learned advocate for the petitioner CO. has also pointed out that the workmen has stated before the labour court in paragraph 7 of the deposition that if the petitioner Co. give their legal dues and claims, she is not willing to accept the same but if the company starts the work again, then she claim her right to work in the petitioner company again. Therefore, Mr. Thakkar has pointed out that the workmen has also not proved the unemployment before the labour court and therefore the grant of full back wages is also illegal and contrary to the law. I have considered the submissions of the learned advocate Mr. Thakkar. In paragraph 10 of the award, the labour court has considered as under : "10. It is an admitted position that the present workmen were discharged from service with effect from 1.1.83 and they were all workmen on daily wage basis. Exh. 37 shows that Premaben Kunvarji worked for 239, 265, 266, 240, 200, 134, 187 and 124 days in all in each of the year from 1975 to 1982. Similarly, Exh. 38 shows that Lilaben Manga worked for 235, 269, 265, 234, 199, 134, 173 and 130 days in all in each the years from 1975 to 1982. Similarly, Exh.39 shows that Ratan Dungar worked for 153, 148, 70, 138, 183, 144, 206, 156 days in each the year from 1975 to 1982. Similarly, Exh. 40 shows that Jivuben Rupabhai worked for 165, 126, 106, 92, 210, 173, 225 and 124 days in all in each of the years from 1975 to 1982. Similarly, Exh. 41 shows that Kunvarben Mansur worked for 154, 157, 138, 153, 225, 135, 186 and 129 days in all in each of year from 1975 to 1982. Similarly, Exh. 42 goes to show that Puniben Rana worked for 124, 109, 196,156, 222 and 144 days in all in each of the year of from 1977 to 1982. Similarly, Exh. 43 shows that Maniben Najabhai worked for 97, 111, 98, 61, 117,87, 147 and 116 days in all the years from 1975 to 1982. Similarly, Exh. 4 4 shows that Kunvarben Daya worked for 136, 174, 132, 87, 181 and 103 days in all, in each of the year from 1977 to 1982 respectively. " In said paragraph, the labour court has considered the working days of each of the workmen from 1975 to 1982 and most of the workmen have completed 240 days in number of years and in some of the years, they have not completed 240 days of continuous service. Mr. Thakkar has pointed out that the workmen are entitled to the protection of section 25F of the ID Act provided that they prove that they have work for 240 days within one year and not otherwise and the employer is not duty bound or obliged to offer and pay the retrenchment compensation and notice or notice pay in lieu thereof to the workmen. Said submission of Mr. Thakkar is contrary to the provisions of section 25B of the ID Act which reads as under : "25-B. Definition of continuous service. - For the purpose of this Chapter, (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not legal, or a lock out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of Cl.(1) 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 the 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 forty days in any other case; (b) for a period of six months, if the workman, during a period of six 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) ninety five days in the case of a workman employed below ground in a mine and (ii) one hundred and twenty days, in any other case." As per section 25B sub clause (1) thereof, the workmen can be said to be in continuous service for a period if he has, for that period, completed uninterrupted service including the service which may be interrupted on account of sickness or authorized leave or accident or strike which is not illegal or lock out or cessation of work which is not due to any fault on the part of the workmen. Therefore, as per the definition of the term 'continuous service', it is clear that if the workman remain in service continuously but if his service is interrupted because of cessation of work which is not due to the fault on the part of the workman then, the workman must be considered to be in service of the employer. Here, it was not the case of the petitioner Co. that during the period from 1975 to 1982, the services of the workmen herein was interrupted by the petitioner CO. for some reason and the relationship between the workmen and the employer has come to an end and, therefore, if the workman remained in continuous service and for some days if the employer is not able to provide work to the workman, it cannot be said to be the fault on the part of the workman and hence the said period for which the work was not provided by the employer, then, the workman can be said to have remained in service because his service was not terminated during this period and, therefore, he is deemed to be in service and the relationship of master and servant was continuing between them and, therefore, according to my view, the provisions of section 25B sub clause (1) of the ID Act shall take care of such situation where, if the workman is unable to get 240 days' work in a year but he was not provided work by the employer and he remained in service during this period if his service is not terminated and continued to remain in service excepting the days on which he was not provided the work which amounts to cessation of work which is not due to any fault on the part of the workman. According to my view, in such a situation, the workman must be considered to be in continuous service and then if the workman is satisfying and proved to be in continuous service within the meaning of sub clause (1) of section 25B of the ID Act, then, sub clause (2) thereof is not required to be established by the workman for getting benefit under section 25F of the ID Act. Sub clause (2) of section 25B is an exception of sub clause (1). The section 25B(2) of the ID Act reads as under: "where a workman is not in continuous service within the meaning of clause (1) 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; ....." Section 25F of the ID Act reads as under: "25-F. Conditions precedent to retrenchment of workman.- 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- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice. (b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the official Gazette]". The principles of statutory construction are well settled. The words occurring in Statutes of liberal import such as "social welfare legislation and human rights legislation" are not to be put in procrustean beds or shrunks to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. The Judges ought to be more concerned with the 'colour', the 'content' and the 'context' of such statutes. In the same manner, Lord Wilberforce, in case of Prenn v. Simonds, [1971 (3) All ER 237], has pointed out that the law is not to be left behind in some island of literal interpretation but is to enquire beyond facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases, namely in case of Surendra Kumar Verma v. Central Government Industrial Tribunal cum Labour Court, it was said by the Hon'ble apex Court that 'semantic luxuries are misplaced in the interpretation of bread and butter statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions. Section 25 sub clause (1) takes care of uninterrupted service to include the service which may be interrupted on account of sickness, or authorized leave or an accident or strike which has not been declared illegal or lock out or cessation of work which is not due to any fault on the part of the workman but that is an independent clause which neither governs nor controls the immediately succeeding clause namely sub clause (2) of section 25B of the ID Act. Sub clause (2) of section 25B of the ID Act governs the situations where the workman is not in continuous service within the meaning of section 25(1) of the Act. It is laid down in sub clause (a) (i) and (a) (ii) of section 25B that where a workman has not been in uninterrupted service for a period of one year or six months as provided in clause (1) of section 25B, he shall still be deemed to be in continuous service under the employer for a period of one year if during the period of 12 calender months preceding the date with reference to which the calculation is to be made, said workman has actually worked under that employer for not less than 240 days in any other case as per sub section (a)(i). Thus, the conclusion falls that where a workman has not been in continuous service within the meaning of sub clause (1) for the entire period of one year or six months, he shall still be deemed to be in continuous service under the employer for a period of one year or six months as the case may be, if he, during the period of 12 calender months which is preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. There should have been subsisting contract of employment during the entire period as required under section 25 B (1) of the Act. It appears that the thrust of the above propositions is the existence of relationship of master and servant for the period during which the workman remained in continuous service as contemplated under section 25B(1) of the Act. The deeming provisions in section 25B sub clause (2) of the Act by fictionally treating interrupted service under certain conditions also as continuous service was introduced by the legislature apparently to mitigate the hardship of the workman who is made to actually serve under the employer intermittently but actually served or serviced with him for a period of not less than 240 days in the preceding 12 months from the date of termination of his service. Sub section (1) and (2) of section 25B of the Act introduced a deeming fiction as to in what circumstances, the workman can be said to be in continuous service for the purpose of Chapter V-A. Sub section (1) provides a deeming fiction that where a workman is in service for certain period, he shall be deemed to be in continuous service for that period even if his service is interrupted on account of sickness or authorized leave or accident or a strike which is not declared illegal or lock out or cessation of work which is not due to any fault on the part of the workman. The situations such as sickness, authorized leave and accident, strike which is not declared illegal, lock out or cessation of work would ipso-facto interrupt the service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which could be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. Sub section (2) incorporates another deeming provision for entirely a different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub section (1) of section 25B of the Act for a period of one year or six months, he shall be deemed to be in continuous service under the employer for a period of one year or six months as the case may be, if the workman during the period of 12 calender months which is preceding the date with reference to which the calculation is to be made has actually worked under that employer for not less than 240 days. Sub section (2) specifically comprehends the situations where the workman is not in continuous service as per the deeming fiction indicated under sub clause (1) of section 25B for a period of one year or six months. In such cases, he is deemed to be in continuous service for a period of one year if the workman satisfies the conditions in sub clause (1) of sub section (2) of section 25B and, therefore, section 25B(1) of the Act says that the workman shall be said to be in continuous service for a period if he has, for that period, put in uninterrupted service including the service which may be interrupted by aforementioned causes. Under section 25B (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year, he shall be deemed to be in continuous service for one year or if the workman during the period of 12 calender months preceding the date with reference to which the calculation is to be made has actually worked under the employer for not less than 240 days. Once the workman is in service of an employer, the employee continuous to be in service until he is dismiss or discharged from service. Where a workman takes part in illegal strike, the workman is in service of the employer and the fact that he has taken part in illegal strike will not put an end or cause break in his service. Said proposition has been considered by the High Court of Bombay in case of Jayram Sonu Shogale versus New India Rayon Mills Ltd. reported in 1958 (1) LLJ page 28 and it has been held that; "taking part in illegal strike amounts to misconduct on the part of the employee and for the misconduct an employee invites an order of dismissal but unless the employee is dismissed from service for such misconduct, it is difficult to say how there could be any discontinuity of service so far as the employee is concerned. It would not be correct to contend that when a workman takes part in an illegal strike, continuity of his service comes to an end and he must be deemed to be re-employed after the period of illegal strike for the purpose of determining the quantum of retrenchment compensation. " Combined reading of section 25B and 25F would make it clear that if a workman establish that he has put in continuous service for not less than one year, he would forthwith be entitled to claim retrenchment compensation for every completed year of service and this would be so notwithstanding the fact that in any particular calender year, he has worked for less than 240 days. Section 25B defines the term 'continuous service'. It has two parts. In the first part, the continuous uninterrupted service for a period which includes the period of absence or sickness or authorized leave or for a strike which is not illegal or for lock out or for cessation of work which is not due to any fault on the part of the workman but if the absence is for illegal strike, in that event, the service will be considered continuous. Mere participation in an illegal strike did not, by itself, affect the continuous service. So long as the workman's service was not terminated, the workman had continuous service. The cessation of work for no fault on the part of the workman contemplates the situation like lay off, not providing work for number of days, even an illegal strike declared by some extremist and the workman has been physically prevented from entering the premises of the office or the factory, as the case may be. Second part of this section contemplates that if the workman has not continuous service under sub section (2), he shall be in continuous service for a period of one year for which the workman has worked for a period of 190 days and 240 days in either cases during the period of 12 calender months, prefaced to the