THE HONOURABLE SRI JUSTICE C.V. RAMULU WRIT PETITION No.34799 OF 1998 DATED: 30.01.2008 Between: A. Vijaya Rao .. Petitioner And The Industrial Tribunal-I, Hyderabad, rep. by its Presiding Officer and another. .. Respondents THE HONOURABLE SRI JUSTICE C.V. RAMULU WRIT PETITION No.34799 OF 1998 ORDER: This writ petition is filed challenging the award, dated 25.04.1998, passed by the Industrial Tribunal-I, Hyderabad, 1st respondent, in I.D.No.140 of 1996. Petitioner is the workman and 2nd respondent is the management. It appears, when the services of the petitioner were terminated, he raised a dispute and, on failure of conciliation, the Government of India, Ministry of Labour, by Order No.L-12012/211/95 IR (B-II) dated 26.11.1996, referred the matter to the 1st respondent Tribunal, under Section 10 (1) (d) and 2-A of the Industrial Disputes Act, 1947 (for short ‘the I.D. Act’), for adjudication of the following issue: “Whether the management of Union Bank of India, Hyderabad, is justified in terminating the services of Shri A. Vijaya Rao, Ex.Attender/ Sweeper w.e.f. 6-1-93? If not, to what relief the workman is entitled?” It was the case of the petitioner that he had put in 240 days of continuous service during the period from 18.06.1991 to 06.01.1993 in various branches of the Union Bank of India at Hyderabad and, therefore, termination of his services, without any notice or compensation in lieu thereof, is arbitrary, illegal and in violation of the provisions of Section 25-F of the I.D. Act. He prayed for reinstatement with all consequential benefits. A detailed counter-affidavit has been filed by the management denying the allegations made by the petitioner. It was stated that the petitioner had not put in 240 days of continuous service in a year preceding the date of termination and the Sundays and public holidays claimed to have been worked by him cannot be taken into consideration for the purpose of computation of 240 days of continuous service. On behalf of the petitioner-workman, he examined himself as WW-1 and marked Exs.W1 to W13. On behalf of the respondent- management, MWs-1 to 3 were examined and Exs.M1 to M9 were marked. After detailed consideration of the matter and on perusal of the entire material on record, the Tribunal came to the conclusion that the petitioner worked for 231 days only and the 13 Sundays claimed to have been worked by him cannot be taken into consideration for the purpose of computing 240 days of continuous service, as they were not covered by any settlement or agreement or any statute, and, thus, the petitioner failed to establish that he worked for 240 days in a year preceding the date of termination of his services. Accordingly, an award was passed holding that the petitioner is not entitled to any relief. Heard both sides. Perused the material made available on record. The short question that arises for consideration in this writ petition is ‘whether the Industrial Tribunal was right in holding that the 13 Sundays claimed to have been worked by the petitioner cannot be taken into consideration while computing 240 days of continuous service?’. The Tribunal referred to a decision of the Supreme Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation ((1985) 4 SCC 71), wherein, while dealing with the question ‘whether Sundays and other holidays for which wages are paid under the law, by contract or statute, should be treated as days on which the employee ‘actually worked under the employer’ for the purposes of Section 25-F read with Section 25-B of the I.D. Act’, the Supreme Court held that the expression ‘actually worked under the employer’ cannot mean those days only when the workmen worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. But, the said findings of the Supreme Court have not been taken into consideration by the Tribunal relying upon another decision in C.V.Raman v. Management of Bank of India (AIR 1988 SC 1369), wherein it was held that the State bank of India and other Nationalized banks are establishments under the Central Government and are, therefore, exempted from the operation of A.P. Shops and Establishments Act, under Section 64 (1) (b) of the said Act. It is unfortunate that the Tribunal has relied on this decision, which has no relevancy to the facts of the instant case. In fact, in C.V.Raman’s case, the question ‘whether the Sundays and other paid holidays could have been taken into consideration for the purpose of computing 240 days of continuous service’ had not arisen for consideration. It is a case where some employees raised a dispute by invoking the provisions of Shops and Establishments Act and, when the matter had come up before the Supreme Court, the Supreme Court has categorically held that Shops and Establishments Act has no application to State Bank of India and other nationalized banks and the authorities under the Shops and Establishments Act have no jurisdiction to deal with the matter, since banks are expressly excluded from the jurisdiction of the Shops and Establishments Act. The proposition laid down in this decision ought not to have been applied by the Tribunal to the instant case. Learned Counsel for the respondent-management relied upon a decision in Ganga Kisan Sahkari Chini Mills Ltd. vs. Jaivir Singh[1], wherein the proposition is that the burden of proof to have worked for 240 days in the preceding 12 months of termination of service lies on the workman, but not the employer, and contended that since the petitioner failed to discharge his burden, the Tribunal rightly refused to grant any relief to the petitioner. In this context, he also relied upon Krishna Bhagya Jal Nigam Ltd. v. Mohd. Rafi [2]. He further contended that when the workman worked in various branches in different spells, those spells cannot be treated as continuous service, and, in support of this contention, he relied upon a decision in Haryana Urban Development Authority v. Om Pal[3], wherein, at paragraph 5, it was held as under:- “The Industrial Tribunal-cum-Labour Court unfortunately did not go into the said question at all. If both the establishments are treated to be one establishment for the purpose of reckoning continuity of service within the meaning of Section 25-B of the Act, as was held by the Tribunal, a person working at different points of time in different establishments of the statutory authority, would be entitled to claim reinstatement on the basis thereof. However, in that event, one establishment even may not know that the workman had worked in another establishment. In absence of such a knowledge, the authority retrenching the workman concerned would not be able to comply with the statutory provisions contained in Section 25-F of the Act……” From the above, it is very clear that when there is no knowledge to one establishment as to working of the workman in another establishment, compliance of Section 25-F of the I.D. Act by the management would not be possible. In this case, the petitioner worked in various branches of the Union Bank of India at Hyderabad, during certain periods, to the knowledge of the authorities, and the same was not in dispute. The dispute is that he had not put in 240 days of continuous service during that period. Thus, in my opinion, the Tribunal wrongly held that the Sundays claimed to have been worked by the petitioner couldn’t be taken into consideration for the purpose of reckoning 240 days of continuous service. This is diametrically opposed to the Judgment of the Supreme Court in Workmen of American Express International Banking Corporation’s case referred supra, wherein at paragraphs 5 and 6, it was held as under: “5. Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief under S. 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in S. 25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is S. 25- B(2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service 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 240 days. The expression which we are required to construe is 'actually worked under the employer. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to S. 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workman had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages - and we see no impediment to so construe the expression - there is no reason why the expression should be limited by the explanation. To give it any other meaning then what we have done would bring the object of S. 25-F very close to frustration. It is not necessary to give examples of how S. 25-F may be frustrated as they are too obvious to be stated. 6. The leading authority on which reliance was placed by the learned counsel for the Management was Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd., (AIR 1981 SC 852). We may straightway say that the present question whether Sundays and paid holidays should be taken into account for the purpose of reckoning the number of days on which an employee actually worked, never arose there. The claim was under the Payment of Gratuity Act. All permanent employees of the employer claimed that they were entitled to payment of gratuity for the entire period of their service, that is, in respect of every year during which they were in permanent employment irrespective of the fact whether they had actually worked for 240 days in a year or not. The question there was not how the 240 days were to be reckoned; the question was not whether Sundays and paid holidays were to be included in reckoning the number of days on which the workmen actually worked; but the question was whether a workman could be said to have been actually employed for 240 days by the mere fact that he was in service for the whole year whether or not he actually worked for 240 days. On the language employed in S. 2(c) of the Payment of Gratuity Act, the Court came to the conclusion that, the expression 'actually employed' occurring in Explanation I meant the same thing as the expression 'actually worked' occurring in Explanation II and that as the workmen concerned had not actually worked for 240 days or more in the year they were not entitled to payment of gratuity for that year. The further question, as to what was meant by the expression 'actually worked' was not considered as apparently it did not arise for consideration. Therefore, the question whether Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workmen could be said to have actually worked was not considered in that case. The other cases cited before us do not appear to have any bearing on the question at issue before us.” From the above, it is clear that the expression ‘actually worked under the employer’ cannot be said to be the days on which he physically worked, and the public holidays and paid holidays during that period shall also be treated as working days. Thus, the 13 Sundays, claimed to have been worked by the petitioner, are to be treated as working days and are to be taken into account for reckoning 240 days of continuous service. Consequently, it is established that the petitioner had put in 240 days of continuous service in a year, as per the provisions of Section 25-B of the I.D. Act, and, therefore, the termination of the services of the petitioner is in gross violation of mandatory provisions of Section 25-F of the I.D. Act, apart from being arbitrary and illegal. Accordingly, in the facts and circumstances of the case, the respondent-management is directed to reinstate the petitioner into service forthwith with continuity of service and 25% of the backwages only. The writ petition is allowed to the extent indicated above. No order as to costs. _________________ JUSTICE C.V. RAMULU 30th January, 2008. IBL [1] 2007 LLR 1260 [2] (2006) 9 SCC 697 [3] (2007) 5 SCC 742