IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5792 of 2010 The Management Of Food Corporation Of India Through Its General Manager Arunachal Building , Exhibition Road , Patna Versus 1. The Union Of India Through Labour Secretary Govt. Of India, New Delhi 2. The Workmen Represented By The State Joint Secretary Food Corporation Of India, Executive Staff Union Firdaus Building, Exhibition Road, Patna -------------------------- 04/ 13.10.2011 Heard Mr. Prabhakar Tekriwal, learned counsel appearing on behalf of the petitioner, Mr. Alok Kumar Sinha, learned counsel appearing on behalf of the respondent no. 2 and Mr. Upendra Prasad, learned Central Government counsel for the respondent no. 1. Before proceeding to deal with the issue raised in the writ petition this Court would put on record that pursuant to the objection raised by learned counsel appearing on behalf of the workmen regarding non observance of provision of Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the „Act‟), Mr. Prabhakar Tekriwal, learned counsel appearing on behalf of the petitioner has produced four individual cheques drawn in favour of Sri Ram Kripal Singh, Sri Saryug Choudhary, Sri Satish Kumar and Sri Anil Kumar, the retrenched workmen, on account of the wages payable to them during the pendency of the proceedings, in the light of the statutory provisions of Section 17B of the Act. The petitioner has questioned the award passed by the 2 Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad in Reference Case No. 29/1992 dated 11.9.2009, whereby the learned Industrial Tribunal while answering the Reference in favour of the workman, has set aside the retrenchment of the four workmen namely, Sri Ram Kripal Singh, Sri Saryug Choudhary, Sri Satish Kumar and Sri Anil Kumar with further direction to the petitioner-Corporation to reinstate the said workmen in service with effect from 1987 with full back wages and to regularize their services against Class-IV posts. The facts of the case briefly stated is that on a dispute raised by the workmen of the petitioner Corporation, a reference was made to the Industrial Tribunal at Dhanbad under Section 10 of the Act, in the following terms: “Whether the action of the management of Food Corporation of India, in terminating four casual workmen, viz., S/Sri Ram Kripal Singh, Saryug Choudhary, Satish Kumar and Anil Kumar without complying the provisions of Section 25-F of I.D. Act, 1947 and denying to take them back in employment from the date of their retrenchment with full back wages and regularization in the time scale of Food Corporation of India was right and justified? If not, to what relief the said workmen are entitled to?” The Industrial Tribunal, Dhanbad by award dated 23.10.1996 / 5.12.1996 passed in Reference No. 29 of 1992 decided the reference in favour of the workmen with a direction to the petitioner-Corporation to reinstate the workmen with full back 3 wages and to regularize their services. The petitioner-Corporation challenged the said award by filing a writ petition giving rise to C.W.J.C. No. 3094 of 1997 and a Bench of this Court (Coram: Ajay Kumar Tripathi, J.) by order dated 17.11.2008 was pleased to allow the writ petition after quashing the award. The workmen preferred an intra court appeal giving rise to L.P.A. No. 40 of 2009 and a Division Bench of this Court (Coram: Shiva Kirti Singh, ACJ and Anjana Prakash, J.) by order dated 1.7.2009 was pleased to allow the appeal to a limited extent, in the following terms: “Hence, we accept the submission advanced on behalf of the appellant and while maintaining the findings of the writ court, remit the matter back to the concerned Tribunal for re-examination of the facts already available on record for giving proper finding before coming to a decision whether provisions of section 25(F) of the Industrial Disputes Act are available for the help of the workmen or not.” Thus the Division Bench even while allowing the appeal of the workmen did not choose to interfere with the findings of the writ court regarding non-fulfillment of the pre-requisites for invocation of provision of Section 25(F) of the Act and it is in this background that the Industrial Tribunal was directed to record a proper finding as to whether the provision of Section 25(F) was available to the workmen. The impugned award is an outcome of the remand by the Division Bench of this Court. Learned counsel for the petitioner had a very limited argument to be made. He submitted that the Division Bench even 4 while upholding the order of the learned Single Judge had remitted the matter to the Industrial Tribunal for recording its finding limited to the extent as to whether the provisions of Section 25(F) was available to the retrenched workmen and whether they fulfilled the stipulated conditions for invocation of the said provision. Section 25(F) of the Industrial Disputes Act lays down the pre-conditions to a retrenchment of a workman who has been in continuous service for not less than one year under the employer. The term continuous service has been defined under Section 25B of the Act and requires the workman seeking protection of the provisions of Section 25F to have rendered continuous service, inter alia, of not less than 240 days in the 12 months preceding the date of the retrenchment. The law is well settled on the issue that the workman who seeks to invoke the provision of Section 25F of the Act has to prove that he had been in continuous service of 240 days preceding the 12 calendar months from the date of retrenchment. Learned counsel has drawn the attention of this Court to the findings of the Industrial Tribunal as regarding the date of retrenchment of the workmen and which is as follows: Sl. No. Name of workmen Date of retrenchment 1. Sri Ram Kripal Singh 31.8.1987 2. Sri Saryug Choudhary 31.8.1987 3. Sri Satish Kumar 31.10.1982 4. Sri Anil Kumar 31.10.1982 Thus two of the workmen, namely, Sri Ram Kripal Singh and Sri Saryug Choudhary were found to have been 5 retrenched with effect from 31.8.1987 whereas the other two, namely, Sri Satish Kumar and Sri Anil Kumar were found to have been retrenched on 31.10.1982. Having given a finding as to the date of retrenchment of the workmen, the Industrial Tribunal proceeds to answer the issue posed by the Division Bench of this Court in paragraph-18 of the award. The finding of the Industrial Tribunal as to the period of continuous service as rendered by the retrenched workmen in paragraph-18 mentions that Sri Satish Kumar had worked for total 211 days between April, 1979 to March, 1980, Sri Anil Kumar had worked for 202 days from April, 1979 to March, 1980, Sri Saryug Choudhary had worked for 204 days from April 1979 to March, 1980 and Sri Ram Kripal Singh had worked for 211 days from April, 1979 to March, 1980 and including the Sundays falling within the period, each of the workman had completed 240 days in a calendar year. Thus the finding of the Industrial Tribunal as regarding the completion of 240 days of continuous service dates back to the period April, 1979 to March, 1980 although the date of retrenchment of the workmen is 31.8.1987 and 31.10.1982 respectively. Having held as such the Industrial Tribunal has proceeded to answer the reference in favour of the workmen relying upon a judgment of the Hon‟ble Supreme Court reported in (2003) 8 SCC 334. That was a matter arising out of U.P. Industrial Disputes Act, 1947. Thus relying upon the definition of continuous service as found under Section 6N and Section 2(g) of the U.P. Industrial 6 Disputes Act which requires a workman to have worked 240 days in a calendar year irrespective of the date of retrenchment, the Industrial Tribunal proceeded to answer the reference in favour of the workmen. There is no finding by the Industrial Tribunal whether or not these four retrenched workmen had completed 240 days in the 12 calendar months preceding their respective retrenchment. The reliance by the Industrial Tribunal on the judgment of the Hon‟ble Supreme Court is wholly misplaced for the reason that no such amendment as found in the U.P. Act, can be found in the Central Act, insofar as the State of Bihar is concerned. Mr. Alok Kumar Sinha, learned counsel appearing for the workmen endeavoured to contest the matter on the grounds that the date of retrenchment as recorded by the Industrial Tribunal is not the correct date of retrenchment as accepted by the Management. He submits that in the written statement filed by the petitioner-Corporation before the Tribunal, the date of retrenchment of these workmen has been mentioned as 1984. The contention of Mr. Sinha also does not salvage the position because even presuming the date of retrenchment as 1984 yet the workmen do not fulfil the prerequisite condition of rendering continuous service of one year prior to the said date of retrenchment of 1984 as admittedly the period of continuous service of 240 days as recorded by the Industrial Tribunal, took place in between April, 1979 to March, 1980 i.e. about four years prior to 1984. Having considered the rival contentions of the parties as well as the finding of the Industrial Tribunal as recorded in 7 paragraph-3 and paragraph-18 of the award, it is manifest that the workmen certainly did not complete 240 days in the 12 calendar months preceding the date of retrenchment and thus neither did they satisfy the prerequisites to the invocation of the mandatory provisions of Section 25F of the Act nor were they entitled to the protection provided thereunder, in the matter of their retrenchment. That being the position the finding of the Industrial Tribunal, Dhanbad is patently erroneous and having been passed on complete misappreciation of statutory provisions and misapplication of the judicial pronouncement of the Supreme Court reported in (2003)8 SCC 334, cannot be sustained. For the reasons aforesaid, the impugned award dated 11.9.2009 passed in Reference Case No. 29 of 1992 as contained in Annexure-1 cannot be sustained and the same is quashed and set aside. The writ petition is allowed. As the cheque for the unpaid wages during the pendency of the proceedings has been passed over to learned counsel for the petitioner during the course of the proceedings, it goes without saying that any of the workman disputing the figures may raise his claim before the appropriate authority of the Corporation by filing a representation and which shall be considered and disposed of in accordance with law. S.Sb/- (Jyoti Saran, J.)