IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10146 of 2006. Date of Decision : February 18, 2009. Panipat Co-operative Sugar Mills Limited, Panipat. ...... Petitioner. Versus. The Presiding Officer, Industrial Tribunal-cum- Labour Court, Panipat, and another. ...... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Kulvir Narwal, Advocate, for the petitioner. Ms. Abha Rathore, Advocate, for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. In the present writ petition, the challenge is to the award dated 01.02.2006 (Annexure-P-3), passed by the Industrial Tribunal-cum-Labour Court, Panipat, vide which the reference has been answered in favour of the workman holding him entitled to reinstatement with continuity of service and full back wages from the date of demand notice i.e. 14.05.1998. Counsel for the petitioner contends that the workman has not been able to prove that he has completed 240 days in the 12 preceding months from the date of his termination and the Labour Court has wrongly included Sundays to hold him entitled to the benefit of Section 25-F of the Industrial Disputes Act, 1947. It is not in dispute that the workman has completed 216 days with the petitioner-management and the relevant C.W.P. No. 10146 of 2006. records were produced by the petitioner-management which has not been disputed by the respondent-workman. Since the respondent-workman has worked for only 216 days, therefore, the award which has been passed in favour of the respondent-workman cannot be sustained and deserves to be set aside. He further contended that the respondent-workman was appointed on daily wage basis and therefore, did not have any right to the post. He further contended that the respondent-workman had been appointed as and when the requirement arose and therefore, cannot be said to be regularly appointed. On the other hand, counsel for the respondent-workman contended that the actual working days of the workman comes to 216 days, however, Sundays and other gazetted holidays are required to be taken into account while counting, and to come to a conclusion whether the respondent- workman has completed 240 days in the 12 preceding months as has been held by Hon'ble the Supreme Court in the case of Workman of American Express International Banking Corporation Versus Management of American Express International Banking Corporation, A.I.R. S.C. 1986. The present case is covered against the petitioner by the Division Bench of this Court in the case of Executive Engineer, P.W.D., Public Health Division, Narnaul Versus Rajbir Singh and another, (C.W.P. No. 6183 of 2004), decided on 24.08.2005. I have heard counsel for the parties and have gone through the records of the case. The question which needs to be decided in the present case is whether Sundays/rest days are to be counted while calculating -2- C.W.P. No. 10146 of 2006. whether the respondent-workman has completed 240 days in the 12 preceding months from the date of his termination. Counsel for the petitioner has basically tried to distinguish the Judgment of Division Bench of this Court in Executive Engineer, P.W.D., Public Health Division, Narnaul's case (supra), on the ground that the said case was one where the workman was appointed on monthly salary and therefore, though this Court has basically relied on the Judgment of Hon'ble the Supreme Court in Workman of American Express International Banking Corporation Versus Management of American Express International Banking Corporation's (supra), but has taken into consideration the Minimum Wages Act, 1948, and the Punjab Minimum Wages Rules, 1950, and granted the benefit to the workman holding him entitled to paid rest days while calculating the number of working days in terms of Section 25-B of the Industrial Disputes Act. He submitted that the present case is one where the workman was appointed on daily wage basis and was paid as per the days he worked. He further relied upon the proviso to Rule 23 (4) of the Punjab Minimum Wages Rules, 1950, which has been relied upon by the Division Bench of this Court to state that where the minimum daily rate of wages of the employee as notified under the Minimum Wages Act, has been worked out by dividing the minimum monthly rate of wages by twenty six or where the actual daily rate of wages of the employee has been worked out by dividing the monthly rate of wages by twenty six and such actual daily rate of wages is not less than the notified minimum daily rate of wages of the employee, no wages for the rest day shall be payable. He on this basis contends that since the minimum daily rate of wages was based on this principle, the workman was not entitled to payment -3- C.W.P. No. 10146 of 2006. of rest day, and therefore, rest day cannot be termed as paid rest day which could be included while computing 240 days under Section 25-B of the Industrial Disputes Act. In any case, he submitted that no evidence has been led before the Labour Court that minimum wages were not paid nor has it been said that he was being given the benefit of rest days and was paid for the rest days and it was a question of fact which can now not be agitated before this Court. He further contended that in view of there being no evidence to this effect before the Labour Court, the conclusion derived by the Labour Court was not sustainable. The contentions as raised by counsel for the petitioner cannot be accepted. It is an admitted position before the Labour Court by the petitioner and has come in the statement of Chander Parkash, Time Keeper, who had appeared as W.W.3 and had brought the summoned records which showed and proved the working days details which has been placed on record as Ex.W.3/A. He has stated in his statement that the weekly rests were not included nor other gazetted holidays were included in the working days details given in Ex. W.3/A, which shows that in the 12 preceding months from the date of termination of the respondent-workman, the workman had worked for 216 days continuously. It is further conceded position by counsel for the petitioner that if rests days are included, the respondent-workman would complete more than 240 days. It is also an admitted position in the statement given by Radhu Ram, Clerk of the Sugarmill, Panipat, who appeared as M.W.2 who has stated that the respondent-workman was not given any notice, pay in lieu of notice and retrenchment compensation before termination of his services. -4- C.W.P. No. 10146 of 2006. That being the position, the submission of counsel for the petitioner cannot be accepted in the light of the Judgment passed by the Division Bench of this Court in Executive Engineer, P.W.D., Public Health Division, Narnaul Versus Rajbir Singh and another's case (supra), and Hon'ble the Supreme Court in Workman of American Express International Banking Corporation Versus Management of American Express International Banking Corporation's case (supra). There can be no conclusion except that the rest days would be counted for the purpose of computing 240 days in 12 calendar months preceding his retrenchment. The Division Bench of this Court relying on the observations of Hon'ble the Supreme Court while considering the provisions of Payment of Wages Act, has held as follows :- “ It is the submission of learned counsel for the respondent- workman, that even if it is taken as correct, that the respondent- workman rendered 26 days service in every month, during the 8 months, during which he is acknowledged to have rendered service under the petitioner-management, he must be deemed to have been paid wages for the four compulsory rest days falling in each of the said months. On the basis of the instant submissions learned counsel for the respondents-workman wishes to conclude that the workman must be deemed to have rendered 30 days of service in each of the 8 months during which he is stated to have rendered service under the petitioner- management. We have perused the Rule 23(4) of the Punjab Minimum Wages Rules, 1950. We are satisfied that in spite of -5- C.W.P. No. 10146 of 2006. the fact that the respondent-workman rendered only 26 days service in the 8 calendar months depicted in the compilation extracted above, he was liable to be paid for four rest days in each of the said months, under Rule 23(4) (i.e. 1 day for rendering service for 5 days), subject to the condition that the respondent-workman was employed in a “Scheduled Employment”. In order to substantiate that the respondent- workman was engaged in a scheduled employment, our attention has been invited to the Schedule appended to the Rules, wherein, the Public Works Department (Public Health) is included. As such, we have no hesitation in arriving at the conclusion that the respondent-workman was paid and / or liable to be paid for rest days during the months he has rendered service with the petitioners-management. The question that has to be adjudication upon now is whether the days on which, the respondent-workman did not render service but was paid for, have to be included while computing 240 days, under Section 25-B of the Act. In so far as the instant issue is concerned, the matter has been adjudicated upon by the Supreme Court in Workman of American Express International Banking Corporation Versus Management of American Express International Banking Corporation, A.I.R. 1996 Supreme Court 458, wherein it had been held as under :- “ 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 -6- C.W.P. No. 10146 of 2006. 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-F of the Industrial Disputes Act. In the present case, the provisions 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'. The 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 has 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 -7- C.W.P. No. 10146 of 2006. 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 expressions '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.” In view of the above, we have no hesitation in arriving at the conclusion that the number of rest days for which the employee had been paid, is liable to be included in the number of working days while calculating 240 days service in terms of Section 25-B of the Act. If that is to be done the respondent- workman is entitled to a paid rest day after completing five working days. Since, it is not a matter of dispute, on the basis of compilation extracted above, that the respondent-workman rendered service for 208 days, he would be entitled to 35 rest days as well as wages for the same. It is, therefore, clear that the respondent-workman has been paid for 208+35 = 243 days in the 12 calendar months, preceding his retrenchment. In view of the decision rendered by the Supreme Court in Workman American Express International Banking Corporation Versus -8- C.W.P. No. 10146 of 2006. Management of American Express International Banking Corporation's case (supra), we are satisfied that the respondent-workman fulfilled the minimum mandatory requirement of 240 days in the 12 calendar months preceding his retrenchment, and as such, was entitled to all the benefits of retrenchment delineated under Section 25-F of the Act. Since the petitioner was neither issued any notice before his retrenchment nor paid compensation in lieu of the notice period, and further more, since he was not paid any retrenchment compensation under Section 25-F of the Act, we are satisfied, that the termination of the services of the respondent-workman in October, 1993 was in clear violation of the mandate of Section 25-F of the Act. In view of the above, we find merit in the contentions advanced by the learned counsel for the respondent-workman, and no infirmity in the award of the Labour Court.” In view of the authoritative decision of this Court, the present case is fully covered by abovementioned Division Bench Judgment of this Court and I see no reason for taking a different view than has been held by this Court. The distinction tried to be drawn by counsel by the petitioner does not have any bearing in the present case in view of Rule 23 (4) of the Punjab Minimum Wages Rules, 1950, as interpreted by this Court. To this extent that the workman has completed 240 days in the last preceding 12 months from the date of his termination is upheld and so is it upheld that the provisions of Section 25-F of the Industrial Disputes having not been -9- C.W.P. No. 10146 of 2006. complied with, the workman is entitled to reinstatement in service with continuity thereof. In any case a finding has been returned by the Labour Court that the provisions of Section 25-G of the Industrial Disputes Act has been violated as the principle of last come first go has not been complied with by the petitioner while terminating the services of the respondent-workman. This finding has been recorded by the Labour Court on the basis of the evidence which has come in the form of statement of Om Parkash workman who appeared as W.W.1 wherein he has stated that one Shri Harbans Lal who is junior to him is still working with the petitioner at the time of his termination. Ram Mehar who appeared as M.W.1 has not denied that Shri Harbans Lal who is an ex-serviceman, and is junior to the respondent- workman is working as a Security Guard. He has not denied the suggestion made to him that the said Harbans Lal is junior to the respondent-workman. In view of the violation of provisions of Section 25-G of the Industrial Disputes Act, the respondent-workman would be entitled to reinstatement with continuity of service irrespective of the fact whether the respondent- workman has completed 240 days in the 12 preceding months from the date of his termination. That being so, the award passed by the Labour Court, cannot be set aside. A perusal of the award also does not indicate that the respondent-workman had not been gainfully employed after his termination of service. Counsel for the petitioner further contends that the onus of proving that the workman has not been gainfully employed from the date of his termination is on the workman himself. He relies upon the Judgment of Hon'ble the Supreme Court in the case of R.B.I. Versus S. Mani, 2005 (5) -10- C.W.P. No. 10146 of 2006. S.C.C. 100. A perusal of the demand notice in the present case, which has been appended as Annexure-P-1, clearly indicates that the respondent- workman had stated in para-7 thereof that the applicant tried his best to get the job again but all in vain. In the present case an affidavit dated 12.08.2006 has been filed by the workman-respondent No. 2 stating there in para-5 that he is not gainfully employed in any factory or establishment. He has kept 2/3 buffaloes and sustains himself and his family by selling milk. The said assertion in the affidavit by the respondent-workman has not been controverted by the petitioner, therefore, the impugned award is modified to the extent that the workman would be entitled to 40% back wages from the date of demand notice i.e. 14.05.1998 instead of full back wages as granted by the Labour Court, vide impugned award dated 01.02.2006 (Annexure-P-3). The present writ petition is partly allowed in above terms. (AUGUSTINE GEORGE MASIH) JUDGE February 18, 2009. sjks. -11-