WP(C) 7066/2005 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT & ORDER (ORAL) In challenge is the award dated 11.4.2005 passed by the learned Industrial Tribunal, Guwahati in Reference Case No. 1(C)/99 answering the petiti oner’s claim of being in continuous service of the respondent Sangathan (for sho rt, hereinafter referred to also as KVS/ respondent) for 240 days as contemplate d under the Industrial Disputes Act, 1947 (for short, hereinafter referred to as ’the Act’). 2. I have heard Mr MU Mahmud, learned counsel for the petitioner an d Mr SC Biswas, learned counsel appearing for the respondents. 3. The facts in bare essentials necessary for the disposal of the i nstant petition are that the petitioner had been engaged as a casual labourer/ P eon with the Kendriya Vidyalaya, New Bongaigaon with effect from 23.4.94 to 20.1 .95. He claimed to be in continuous service. However, the respondents prevented him from attending his duties on and from 20.1.95 without any prior notice or op portunity to represent against the said action. Attempts to effect conciliation between the parties through the mechanism under the Act having failed, the Centr al Government on 30.11.98 comprehending an industrial dispute under the said leg islation referred the same for adjudication to the Industrial Tribunal, Guwahati (for short, hereinafter referred to as ’the Tribunal’) formulating the followin g term of reference : Whether the action of Kendriya Vidyalaya, New Bongaigaon in not regularizing th e service of Sri Bose is legal and justified? If not, to what relief the workman is entitled to ? 4. On receiving the notice of the reference, both the parties enter ed appearance and filed their respective written statements projecting their sta nds. Whereas the petitioner herein reiterated his plea of continuous service wit h the respondents for the aforementioned period computing it to be of 270 days w ithout any break and, thus, repudiated his retrenchment to be violative of Sect ion 25-F of the Act, the latter apart from questioning the maintainability of th e reference on the ground that the Sangathan was not an industry as defined by t he Act, termed the petitioner’s appointment to be on casual basis and as a pure ly stop gap arrangement. It was, inter alia, asserted that he had been engaged a nd disengaged on a number of occasions during the period in question depending o n the exigencies of works and that in all he had actually worked for 213 days. 5. In support of their respective contentions the parties adduced e vidence. The respondents, in particular, relied on the attendance registers of i ts casual employees and night guards (Exhibit-P & Q) for the relevant period. 6. The learned Tribunal on a consideration of the materials on reco rd by its award dated 28.12.99 returned the finding that the petitioner had work ed as a casual worker with the respondents for more than 240 days and, thus, ans wered the reference in his favour. Being aggrieved, the respondents approached t his Court in WP(C) No. 2267/2003 and by judgment and order dated 3.4.2003 the ma tter was remanded to the learned Tribunal to decide the limited issue as to whet her the workman/ petitioner herein had completed 240 days of continuous service on the basis of the materials available on record. The award dated 28.12.99 was, thus, interfered with in the above terms. The petitioner unsuccessfully assaile d this decision before the Division Bench in Writ Appeal No. 277/2003 which was dismissed on 12.9.2003. By the award impugned herein the learned Tribunal on a f resh determination has recorded that the petitioner had not been in actual and c ontinuous service for 240 days in a period of twelve calendar months prior to hi s disengagement and that, therefore, his claim for regularisation of service was unsustainable in law and on facts. 7. The respondents in their affidavit-in-opposition have pleaded th at the petitioner in fact had worked for 208 days during the relevant period wit h breaks in between and that as the award is based on a correct appreciation of the materials on record, no interference of this Court in exercise of its power of judicial review is warranted. 8. Mr Mahmud has insistently urged that having regard to the defini tion of continuous service as provided in Section 25-B of the Act, the petitione r in the facts and circumstances of the case ought to be construed to have actua lly worked for 240 days, the intermittent breaks being artificial and at the whi ms and caprices of the concerned respondent authority. Pointing out that as admi ttedly the petitioner had rendered his service for 208/213 days during the relev ant period, having regard to the socially beneficial attribute of the enactment, the artificial breaks for which the petitioner cannot be held responsible, ough t to be ignored. As the petitioner at all relevant times was willing to work and , as a matter of fact, five vacancies subsisted on the date on which he was ille gally retrenched, the learned Tribunal ought not to have denied him the benefit of continuous service solely relying on the actual number of working days record ed in the attendance registers (Exhibit-P and Q), he urged. Without prejudice to the above, Mr Mahmud has argued that as the petitioner admittedly had worked fo r over 200 days, he was entitled to be ascribed the status of a temporary employ ee and, thus, by no means could have been discharged without notice. As in the facts and circumstances of the case the dis-engagement of the petitioner is viol ative of Section 25-F of the Act and otherwise, the learned Tribunal ought to ha ve answered the reference in favour of the petitioner, he maintained. 9. In support of his arguments, Mr Mahmud has placed reliance on th e decisions of the Apex Court in The Workmen of American Express International B anking Corporation -vs- The Management of American Express International Banking Corporation reported in (1985) 2 S.C.J. 111; Air India Statutory Corporation & Ors. -vs- United Labour Union & Ors. reported in (1997) 9 SCC 377, Executive Eng ineer, Punjab -vs- Pargat Singh reported in (2005) 12 SCC 283; R.M. Yellati -vs- Assistant Executive Engineer, reported in AIR 2006 SC 355; and a decision of th is Court in M/s Associated Timber and Industries -vs- The Regional Provident Fu nd Commissioner, N.E. Region, Guwahati & Ors., reported in 1997 (1) GLT 434. 10. Mr Biswas, against this has submitted that having regard to the limited issue remitted to the learned Tribunal to be answered, the impugned awar d based on the materials on record ought not to be overturned. He has further su bmitted on instructions that as on date the respondents has discontinued making appointment to Grade-IV posts. 11. I have extended my anxious consideration to the pleadings on rec ord and the arguments advanced. The sequence of events leading to the institutio n of the present proceeding is a matter of record. By the judgment and order dat ed 3.4.2003 rendered in WP(C) No. 2267/2000 as alluded hereinabove, this Court w hile interfering with the award dated 28.12.99 had remanded the matter to the le arned Tribunal to decide on the limited aspect as to whether the petitioner had completed 240 days of continuous service on the basis of the materials available on record. Indisputably, the petitioner has not questioned the authenticity or correctness of the attendance registers (Exhibit- P and Q) as well as the findin gs of the learned Tribunal based thereon that he had actually worked for 208 day s in the capacities of a casual employee and a night guard. Whereas it is endeav oured on behalf of the petitioner to attest that having regard to the letter and spirit of the concept of continuous service as engrafted in Section 25-B of the Act, the breaks in between during the period 23.4.94 to 20.1.95 ought to be ign ored, it is stoutly contended to the contrary by the respondents. The learned Tr ibunal by the impugned award had rejected the plea against the maintainability o f the reference based inter alia on the ground that the Sangathan is not an indu stry covered by the Act. The applicability of this enactment in absence of any c hallenge to the said finding by the respondents, therefore, cannot be doubted fo r the present. Section 25-B which is of decisive relevance deserves to be quoted to the extent it is necessary. 25-B. Definition of continuous service. - For the purposes of this Chapter, -- (1) a workman shall be said to be in continuous service for a period if he is, f or that period, in uninterrupted service, including service which may be interru pted on account of sickness or authorized 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 fa ult on the part of the workman; (2) 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, ha s actually worked under the employer for not less than - (i) one hundred and ninety days in the case of a workman employed below ground i n a mine; and (ii) two hundred and forty days, in any other case; ........................................................................... 12. The above excerpt indicates that whereas under sub-clause (1) co ntinuous service for a period signifies service without any interruption except for the eventualities as contemplated therein, sub-clause (2) governs the situat ions otherwise. A workman thereunder is deemed to be in continuous service for a period of one year if he during that period, though not actually engaged uninte rruptedly during that term had actually worked for not less than 190 days in cas e of employment below ground in a mine and 240 days in any other case. It is not the case of any of the parties in the instant proceeding that the petitioner ha d actually worked for 240 days. Judged by the entries in the attendance register s (Exhibit-P and Q), it is established that he had actually worked for 208 days during the period 23.4.94 to 20.1.95 which is otherwise a span of 270 days. In o ther words, out of 270 days comprising the aforementioned period, the petitioner had actually worked for 208 days. This conclusion is possible in the absence of any dispute raised by the petitioner about the number of actual working days de monstrated by Exhibit- P and Q. The words actually worked under the employer fo r not less than applied in Section 25-B(2)(a), in the considered opinion of thi s Court, is of determinative significance. This not only underlines that for a w orkman to avail the benefit of continuous service as envisaged thereunder he has to actually work for 240 days under an employer if engaged otherwise than in an underground mine, in absence of any indication to that effect, the plea of arti ficial breaks is also not entertainable to make up the deficiency. The statute h aving comprehended the concept of continuous service as unambiguously defined in Section 25-B, it is impermissible for this Court to tinker therewith lest it am ounts to curial legislation. 13. On a perusal of the impugned award, the finding of the learned T ribunal that the petitioner had actually worked for 208 days appears to be based on correct appreciation of the pleadings and the evidence on record and, thus, cannot be discarded as against the weight of the factual foundation provided the reby. Whereas, the decisions of the Apex Court in The Workmen of American Expres sion International Banking Corporation (supra) and Executive Engineer, Punjab (s upra) deal with the mandatory nature of the prescriptions of Section 25-F as con ditions precedent for valid exercise of powers thereunder as well as the consequ ence of non-compliance thereof, the rendering in Air India Statutory Corporation (supra) emphasizes in particular on the adherence to the requirements of enjoin ments of Article 14 of the Constitution as a pre-requisite of a valid State acti on. The decision of the Apex Court in R.M. Yellati (supra) is clearly distinguis hable on facts as in that case the claim of the workman involved of having worke d for 240 days was reinforced by a certificate issued by the appropriate authori ty of the management. In absence of such materials it cannot be held that the ca sual employment of the petitioner, as in the instant case, was a regular feature . The decision of this Court in M/s Associated Timber and Industries (supra) is also, therefore, of no help to him. 14. On a totality of the considerations as enumerated hereinabove, i n the opinion of this Court the challenge lacks in merit and is, accordingly, re jected. 15. The writ petition is dismissed. No costs.