IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8485 of 1993 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 : 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 Labour : yes Judges & Industrial Tribunal Members @ SUNIL BHALCHANDRA JANI Versus GUJARAT ELECTRICITY BOARD -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8485 of 1993 MR DS VASAVADA for Petitioner No. 1 M/S MG DOSHIT & CO for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 18/04/2002 ORAL JUDGEMENT #. Heard Mr.D.S.Vasavada, learned advocate appearing on behalf of the petitioner and Mr.M.G.Doshit, learned advocate on behalf of the respondent - Board. #. In the present petition, the petitioner workman has challenged the award passed by the Labour Court, Vadodara in Reference No.612 / 1984 dated 2nd March, 1993. Initially, this Court has issued RULE and expedited hearing of the matter by order dated 27th October, 1993. On behalf of the respondent, affidavit-in-reply has been filed, against which, rejoinder has also been filed by the petitioner and same are on record. #. Learned advocate Mr.Vasavada appearing on behalf of the petitioner workman has submitted that the labour court has committed gross error in rejecting the Reference of the petitioner on the ground that he was not working on a permanent post of Tracer and he has not completed continuous service of 240 days in a year and therefore, Section 25-F is not required to be complied with. Mr.Vasavada, learned advocate has submitted that period in which the petitioner workman had worked with the respondent Board is not in dispute between the parties. He also submits that the actual working days of the petitioner, if taken into consideration from any angle, the petitioner workman has completed 240 days continues service. He has also submitted that from the date of termination, in last preceding 12 months also the petitioner workman has completed 240 days continuously and even according to the calender year also the workman has completed 240 days service. It is also case of the petitioner that even from the date of termination, he has completed 240 days and therefore, in any way from these three angles, the petitioner workman was in continues service with the respondent and completed 240 days service within meaning of Section 25 [B] of the Industrial Disputes Act, 1947. But this aspect has been grossly ignored by the labour court on account of misreading and misconception of law. The labour court has committed gross error while rejecting the Reference of the petitioner workman. Mr.Vasavada has also submitted that the petitioner workman was qualified for temporary post of Tracer and this aspect has been mentioned in award in para-6 on page.21. He also submitted that no doubt periodical appointments were given to the petitioner workman but said termination is prior to 1984 and therefore, provision of Section 2[oo][bb] of the Act is not applicable at all. Mr.Vasavada, learned advocate has relied on one decision of this Court reported in case of BHARAT HEAVY ELECTRICALS LTD, BARODA V. R.V.KRISHNA RAO reported in 1990 [1] LLJ pg.87. Therefore, Mr.Vasavada, learned advocate submits that it is case of clear and apparent error on the face of the record which requires to be interfered by this Court while exercising the powers under Article 227 of the Constitution of India. #. Learned advocate Mr.M.G.Doshit appearing on behalf of the respondent Board has submitted that the Board has already filed affidavit and merits has already been disclosed by the respondent Board in said reply. However, Mr.Doshit has submitted that award passed by the Labour Court is perfectly legal and valid and no error has been committed by the labour court while rejecting the Reference of the petitioner. Mr.Doshit, learned advocate also submits that this Court is having very limited jurisdiction under Article 227 of the Constitution of India and this Court cannot interfere with the award unless any jurisdictional error is pointed out before this Court committed by the Labour Court. He also submits that the petitioner workman has not completed continuous service within the meaning of Section 25-B of the Industrial Disputes Act, 1947 as periodical appointments were given and thus, every appointment amounts to new engagement of the petitioner workman and in between there was break and in some cases, the break was for one month or so and therefore, such working cannot be considered to be continues service of the petitioner workman. Mr.Doshit, learned advocate also submits that if the petitioner workman has not worked continuously and completed 240 days continuously, then there is no need to comply with the provisions of Section 25-F of the Industrial Disputes Act, 1947. He also submits that relationship of employer and employee is required to be established on each occasion and if the workman is appointed temporarily or ad hoc basis, then there was no obligation on the part of the employer to provide work continuously. As and when work was available, the workman was appointed on the post in question temporarily and therefore, he was not in continues service, meaning thereby, not rendered continues service with the respondent Board. Mr.Doshit also submits that service of workman has been terminated by afflux of time and there was no question of termination of service by the employer but employment automatically came to an end as specified in the appointment order was operated. He also submitted that Sankheda Project Work was carried out by the Board and the work was over in 1988 and therefore, services of the petitioner workman has been terminated rightly by the Board. Mr.Doshit has also submitted that Rural Electrification Programme, which was financed by Government of India and on that basis, work was carried out by the respondent Board. It is submitted by the respondent that the petitioner workman was not appointed on regular establishment after due procedure of selection and the terms and conditions set out in the appointment orders also required to be considered. He also submits that on each occasion appointment orders were given after considering the application of the petitioner and on that basis, appointment orders were issued in favour of the petitioner workman. Therefore, a moment said period was over prescribed in the appointment order, relationship between employer and employee automatically came to an end. Therefore, provisions of Section 25[B] and 25[F] of the I.D.Act are not violated by the respondent Board and the labour court has rightly appreciated the facts on record. The labour court has given cogent reasons in support of the conclusion and therefore, there is no error apparently on the face of the record which in any way does not require to be interfered with by this Court while exercising the powers under Article 227 of Constitution of India. Learned advocate Mr.Doshit has also pointed out that during pendency of the Reference, some suggestion was made and on that basis, some offer was given to the petitioner for workman but the workman has refused to accept such offer from the respondent Board and therefore also, he is not entitled to any relief in the present petition. #. I have considered submissions made by the learned advocates on behalf of the respective parties. Before the Labour Court, the petitioner workman has challenged the termination order dated 3rd December, 1982. The Reference has been made by the concerned authority to the Labour Court for adjudication whether the termination order is legal and valid or not, and if yes, ultimately what relief the petitioner workman is entitled. Therefore, it is the duty of the labour court to examine the legality and validity of the termination order only. Before the Labour Court, the petitioner workman has filed statement of claim vide Exh.41 and written statement was filed by the respondent Board vide Exh.32. Thereafter, both the parties have placed on record written arguments vide Exh.53 / 56. The petitioner workman has filed affidavit vide Exh.15 and thereafter cross examination by the respondent. On behalf of the respondent Board, one witness Mr.Pandya was examined at Exh.44 and thereafter, the labour court has considered the merits. However, both the parties have produced certain documents before the labour court. The petitioner workman has annexed Annexure-B pg.30 and 31, wherein working days are shown from the date of appointment is shown as 5th June, 1981 upto 30th June, 1982 and total days so calculated come to 299 days. On next pg.31, it is seen that the working days are from 4th November, 1981 to 3rd December, 1982 and the working days so calculated come to 321 days completed by the petitioner workman. It is noticed that this calculation has been placed on record and incorporated in the petition by the petitioner in para-9 of the memo. As per details of actual workings given in para-9 of the petition which reveals that the workman had worked from the date of appointment 6th June, 1981 till 5th June, 1982 which comes to total days 278. Considering the working days given by the petitioner in para-10, which shows that in a calender year, the petitioner had also worked for 273 days for the period from January, 1982 till December, 1982. Further, as per the details given in para-11 of the petition, it is seen that the petitioner had worked for 300 days from 4th December, 1981 to 3rd December, 1982 i.e. the period 12 months preceding from the date of termination. Thus, by giving these details, the petitioner has justified that even from any ratio, the petitioner has worked for more than 240 days in continues service during the period of one year and thus, the petitioner has completed 240 days continues service with the respondent Board from any angle. It is also case of the petitioner that even from the date of termination in last preceding 12 months or even in a calender year or from the date of appointment the petitioner has completed 240 days continuously with the respondent Board. Therefore, considering these details and the fact the details are not disputed by the respondent Board in their reply because of the fact that before the labour court, appointment orders were produced by the petitioner vide Exh.11, the labour court has though considered that the factual aspects but come to the conclusion that during this period in question, there was break of two or three days or on some occasions, there was break of one month and accordingly, the labour court has concluded that this period cannot be considered as continues service rendered by the workman. To consider this issue, it is first of all relevant to consider and read the provisions of sub Sections and Section 25[B] of the Industrial Disputes Act, 1947 which is reproduced as under: "25-B Definition of continues service - For the purposes of this Chapter - [1] a workman shall be said to be in continues service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted 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; [2] where a workman is not in continues service within the meaning of clause [1] for a period of one year or six months, he shall be deemed to be in continues service under an employer - [a] for a period of one year, if the workman, during a period of twelve calender 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; [b] for a period of six months, if the workman, during a period of six calender 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 day, in any other case. #. Thus, sub Section [1] of Section 25-B provides that workman shall be said to be in continues service for a period, if he is for that period, in uninterrupted service, including service which may be interrupted 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, whereas, sub section [2] provides that 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, sub clause [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 190 days in the case of a workman employed below ground in a mine and 240 days in any other case. Thus, considering Section 25-B of the Industrial Disputes Act, 1947, if the workman has remained in continuous service with the employer and his service has been interrupted by any reason provided in Section and he was not continued in service but he had rendered actual working of 240 days, then service has to be considered continuously. It is necessary to note that Section 25-F requires that no workman employed in any industry who has been in continues service for not less than one year under an employer shall be retrenched by the employer only on conditions mentioned in sub clause [a] to [c] are satisfied. Therefore, if both these Sections are read together, which clearly suggests that if the workman has completed continues service and not interrupted by reasons provided under sub Section [1], then there is no need to comply actual working of 240 days for getting the benefits under Section 25-F of the Industrial Disputes Act, 1947, meaning thereby, if the workman has satisfied requirements of provisions of Section 25-B[1], then there is no need to completion of 240 days for getting benefits of Section 25-F of I.D.Act. Therefore, considering the facts of the present case, the petitioner workman has satisfied requirements of both sub sections [1] and [2] as per the undisputed details given in Para-9, 10 and 11. The contents of para-9 to 11 of the petitio Memo also reveals that from any such ratio and / or from any angle, the requirement of working days as provided under the Section 25-B has been satisfied by the petitioner. It is pertinent to note that the details given by the petitioner showing working days, has not been disputed by the respondent. Therefore, considering this factual aspects of the matter which admittedly not disputed by the respondent, there is no reason to disbelieve that the petitioner workman was not in continuous service with the employer and therefore, workman had completed actual working of 240 days during the tenure of his employment with the respondent Board. Therefore, provisions under Section 25-F would be applicable in case of the petitioner but facts of the present case, non compliance of Section 25-F of the Act has not been disputed by the respondent Board and therefore, obviously the order of termination becomes ab initio void. This question has been examined by this Court in case of MOTI CERAMIC INDUSTRIES V. JIVUBEN RUPABHAI & ORS reported in 2000 [2] GLR 1558. This Court has observed that mere fact that the workman had not worked for 240 days in service in some year/s during his employment, would not debar him from claiming entire amount of retrenchment compensation as provided under Section 25-F of the I.D.Act. Mere fact during some years in his long period the workman had not worked for 240 days, is not an answer to deprive him of the retrenchment compensation by ignoring the entire period. Once, it is proved or found that the workman is in continuous service, then it is wholly immaterial whether he has worked for particular number of days in a particular year. The contingency which demands the worker to work for period of 240 days as provided under sub Section [2] of Section 25-B of the Act, would come into play provided the workman is not in continuous service as required under Section 25-B[1] of the Act. The relevant discussion in para-10 and 13 of the said decision are reproduced as under :- "10. In view of the above provisions, it is clear that sub section [1] of section 25-B of the act provides that the workman shall be said to be in continous service for a period if he is, for that period, in uninterrupted service. Continues service would be interrupted only by two modes and that is by workman leaving the employment or employer terminating his service by dismissal or discharge. Mere absence of the workman without obtaining prior leave for a days would not put an end to the continues service of a workman. Sub section [2] opens with the words "where a workman is in continuous service within the meaning of sub clause [1]" and these words unmistakably indicate that the legislature has desire and intention to cover the cause even of those workman who were not in continuous service for the purpose of retrenchment. Mere fact that the workman had not worked for 240 days in some year/s during his long employment would not debar him from claiming entire amount of retrenchment compensation as provided under Section 25-F of the I.D. Act. Mere fact that during some years in his long period, the workman had not worked for 240 days is not an answer to deprive him of the retrenchment compensation by ignoring the entire period. Once it is proved and / or found that the workman is in continues service, then, it is wholly immaterial whether he has worked for particular number of days in a particular year. The contingency which demands the worker to work for a period of 240 days as provided by sub section [2] of Section 25-B of the Act would come into play provided the workman is not in continues service as required under Section 25-B of the Act." Both, on principles and on precedent, it must be held that Section 25-B[2] provides a situation where the workman is not in employment for a period of 12 calender months but has rendered service for a period of 240 days within the period of 12 calender months and commencing and counting the backward from the date of retrenchment, if he has, he would be deemed to be in service for the purpose of Section 25-B and Chapter V-A and once it is found that the workman is in continues service under Section 25-B[1] of the Act and the workman is satisfying the conditions and contingency mentioned in the said sub sec [1] then it is wholly immaterial whether he has worked for a particular number of days in a particular year. Contingency which demands the worker to work for a period of 240 days as provided by sub section [2] of Section 25-B would come into play provided the workman is not in continues service as required under Section 25-B [1] of the I.D.Act. 13. Therefore, according to my view, if the workman is satisfying sub clause [1] of Section 25-B of the I.D.Act, then, it is not necessary for the workman to satisfy the deeming provision which has been made under sub clause [2] of Section 25-B of the I.D.Act. Therefore, considering the provisions of Section 25-B of the I.D.Act, it becomes clear that no workman employed in any industry who has been in continues service for not less than one year under an employer can be retrenched by that employer unless the employer has to satisfy condition precedent mentioned in sub clause [a] to [c] of Section 25-F of the I.D.Act. #. The contention which is raised by the respondent that the petitioner workman was working periodically and relationship between employer and employee remained in existence so long as periodical appointment was continued. It is also submitted that a moment, period of such periodical appointment is over and come to an end, relationship of employer and employee automatically comes to an end. The gap in between two appointment orders that has been considered as break in service and such service has not been treated as continuous service of the petitioner workman. This aspect has been wrongly examined by the labour court. According to my opinion, the labour Court has committed gross error in coming to the conclusion by misreading Section 25-B of the I.D.Act. Therefore, this is clear misconception in the mind of the labour court while not properly appreciating Section 25-B of the Act looking to the undisputed facts on record between the parties in respect of the working days and period of service. However, from undisputed factual aspects of the matter, it is noticed that the workman has actually worked and completed 240 days continuously in service in a period of one year. Therefore, whatever artificial break/s given to the petitioner workman by the respondent Board for a period of two or three days or on some occasions even for one month, for which, sufficient safeguards provided under Sub Section [2] of Section 25-B of the I.D.Act. The labour court has decided the entire Reference on the footing that the petitioner workman was not appointed on regular establishment and he has not worked against clear vacancy of the post in question. Therefore, whatever service rendered by the workman, cannot be considered to be continues service under Section 25-B of the Act. When the dispute was raised by the workman, whereby it was, in fact, not claimed permanency from the respondent. Admittedly, the petitioner has raised dispute, was against and relating to termination but the labour court has considered that the aspects that workman was not appointed on regular establishment and he was not regularly selected candidate. However, it is contended by the respondent that the workman was once interviewed but he was not selected by the Committee and the workman was working temporary and on ad hoc basis and therefore, whatever service rendered by the petitioner on adhoc basis, same cannot be considered to be continues. Therefore, considering this contention the question arises that whether a person appointed on temporary basis or adhoc basis if completed continues service whether such workman covers under Section 2[s] of the Act or not. This aspect has been examined by the Madhya Pradesh High Court in case of MADHYA PRADESH TEXT BOOK CORPORATION V. KRISHNAKANT PANCHOLI reported in 1998 [80] FLR pg.54., wherein it is clearly held that all type of workmen including daily rated temporary or ad hoc worker covered under the definition of Section 2[s] of the I.D.Act, 1947. Whether the daily rated are entitled to protection under Section 25-F of the I.D.Act or not. This aspect has also been examined by the Apex Court in case of RATTAN SINGH VS. UNION OF INDIA reported in 1997 [11] SCC pg.396. The Apex Court has observed that the daily wager are entitled to protection of Section 25-F of the I.D.Act if the services of daily rated has been terminated, Section 25-F is applicable