C.W.P. No.3349 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.3349 of 1999 Date of Decision: 13.08.2009 Ramesh Kumar .....Petitioner Versus Engineer-in-Chief and others ...Respondents Present: Ms. Promila Nain, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G., Haryana for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J. (ORAL) 1. The matter has been remanded by the Hon'ble Supreme Court by its judgment in Civil Appeal No.4698 of 2000. The civil appeal had been originally filed against an order of this Hon'ble Court when it had directed a compensation of Rs.10,000/- in full and final settlement of the workman's claim without going into the merits of the respective contentions of parties. The Hon'ble Supreme Court directed that the case shall be gone into with reference to the merits of the dispute between the parties. 2. It is an admitted case that the workman had been employed by the management on 01.01.1993 and the order of termination was made on 21.05.1994. The complaint made on behalf of the workman was that the statutory mandate of Section 25-F had not been complied C.W.P. No.3349 of 1999 -2- with and therefore, the termination was bad. Before the Labour Court, the parties were locked up in dispute with reference to the actual number of days which the workman had worked. The attempt of the workman before the Labour Court was that he had worked even in the calendar year 1993 over more than 240 days and therefore, he was entitled to compensation under Section 25-F of the Industrial Disputes Act. This aspect was denied by the management and it contended that the workman had only 231 days of continuous service. The dispute was with reference to particularly the months March, 1993 and December, 1993 when according to the management, the workman had worked only for 24 days and 27 days respectively. The management had filed MW-1 which contained the details of the engagement of services of the workman from January, 1993 to December, 1993 and the split up of number of days of work, had never showed that the workman had worked for 243 days, as contended by the workman. 3. The workman sought to adduce evidence through copies of attendance register for March and December, 1993, which according to the workman, proved that he worked for 28 days in March 1993 and 31 days in December 1993. The copy of the document which had been filed by the workman had been disputed by the management but the Labour Court took note of the fact that the original register itself had not been produced by the management. The Labour Court, however, found that even if the document as filed by the workman was to be taken note of, the workman would not have completed 240 days. It is evident that the parties were taking the focus only on the C.W.P. No.3349 of 1999 -3- continuous service during the year 1993 and did not advert to the issue whether the workman had continuous service upto 21.05.1994 which would qualify within the definition of Section 25-B as "continuous service" if a reckoning was to be made backward from 21.05.1994. In other words, if reckoning was to be made from June 1993 to 21.05.1994, the workman did not have 240 days. 4. When the matter was taken up for argument, the first objection that was taken on behalf of the State was that it is not sufficient if a workman had worked for 240 days in any one calendar year but what is relevant would be that the workman should be shown to have had continuous service on the date of termination of service, which in this case is 21.05.1994. According to learned counsel for the State, Mr. Nalwa, this continuous service of not less than one year, which Section 25-F of the Industrial Disputes Act contemplates, must be taken to be a period that abates with the order of termination. He would refer to Section 25-F of the Industrial Disputes Act and a portion of Section 25-F reads “No workman employed in any industry, who has been in continuous service for not less than one year under an employer, shall be retrenched by that employer until........ (a) ............. (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and (c).............." 5. This Section 25-F of the Industrial Disputes Act itself does C.W.P. No.3349 of 1999 -4- not talk about how the computation of "continuous service of not less than one year" shall be made. Section 25-B contains the definition of "continuous service" and it is in two parts. The relevant portions are: "(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or unauthorized leave or an accident or a strike which is not illegal, or a lockout 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 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, has actually worked under the employer for not less than- (i) one hundered and ninety days in the case of a workman employed below ground in a mine; and (ii) two hunderd and forty days, in any other case; (b)................. (c).................." C.W.P. No.3349 of 1999 -5- 6. Section 25-B (1) makes reference to a continuous service which would include even interruptions arising on account of sick leave, authorized leave or accident or a strike, which is not illegal or lockout or a cessation of work, which is not due to any fault on the part of the workman. Section 25-B (2) creates a fiction that this continuous period of one year could be counted as such even if a workman had completed 240 days preceding the date with reference to which the calculation is to be made (emphasis supplied). According to learned State Counsel, Mr. Nalwa, the reference to the date to which calculation is to be made shall be read in the context of Section 25-F(b). The workman shall be paid at the time of retrenchment, 15 days average pay for every completed year of continuous service or any part thereof in excess of six months. The duty to pay compensation under Section 25-F, according to him, shall arise only if: (i) the workman had a continuous service of not less than one year; (ii) that one year shall determine on the day when the termination is made; (iii) he shall be deemed to have one year of continuous service even if the workman had 240 days of service. In support of this contention, learned counsel refers to a decision of the Hon'ble Supreme Court in Surenderanagar District Panchayat Vs. Dahyabhai Amarsinh AIR 2006 SC 110 that dealt with the definition of 240 days continuous service referred to under Section 25-B. Paragraph 19 of the judgment reads thus:- “...In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 C.W.P. No.3349 of 1999 -6- days during the period twelve calendar months preceding the date of termination (emphasis supplied). What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. Therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. The Courts below have wrongly drawn an adverse inference for non production of the record of the workman for ten years. The scope of enquiry before the Labour Court was confined to only 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25-F of the Industrial Disputes Act. The workman has never contended that he was regularly employed in the Panchayat for one year to claim the uninterrupted period of service as required under Section 25B(1) of the Act. In the fact and situation and in the light of the law on the subject, we find that the workman- C.W.P. No.3349 of 1999 -7- respondent is not entitled for the protection or compliance of Section 25-F of the Act before his service was terminated by the employer.....” 7. This judgment states that the relevant scope of enquiry before the Labour Court shall be confined only to 12 months preceding the date of termination to decide the question of continuation of service for the purpose of Section 25-F of the Industrial Disputes Act. According to learned counsel for the State, this has an objective to fulfill, namely, that a right to compensation or notice under Section 25-F shall avail only to workman, who had been in continuous service till the date of termination which continuous service shall be read in the context of Section 25-B. 8. Learned counsel appearing for the workman points out that the argument which is now advanced is done for the first time before this Court and before the Labour Court, the only attempt was to show that the workman did not have 240 days of service in the calendar year 1993 and the number of days which the workman had actually worked for one year prior to the date of termination was never a point in discussion before the Labour Court. When we are interpreting Section 25-F and the entitlement of the workman to demand the compliance of the said Section, I do not think it would be possible to fetter the right of a party to make submissions on an interpretation of Section. It cannot be a matter of concession in relation to how the matter was dealt with before the Labour Court that could determine the issue before this Court. Therefore, the objection raised with regard to the fact that the interpretation now made before this Court was not C.W.P. No.3349 of 1999 -8- canvassed before the Labour Court is rejected. Learned counsel appearing for the workman would still submit that what is relevant to be noticed is that Section 25-F of the Industrial Disputes Act contemplates that the workman should have had continuous service of not less than one year. The Section itself does not talk about the actual year in which the person must have worked for a continuous service. Therefore, so long as a continuous period of one year service is available in the tenure of work of the workman, he will be entitled to the benefits of Section 25-F of the Industrial Disputes Act. It is, therefore, contended by a proper reckoning if the number of days of working from January 1993 to December 1993 is seen and if it can be shown that the workman had 240 days then the right of entitlement to compensation and to a notice as required under Section 25-F is inescapable. Learned counsel appearing for the workman would point out as a matter of fact that the document relied on by the management in MW-1 showed that the workman was paid wages of Rs.875/- for January 1993, which was worked out @ Rs.35.75. Admittedly, the workman had been paid Rs.834/- in March, 1993 and if the same rate were to be applied, the actual number of days the workman had worked would come to 28 days and not 24 days as accorded to the workman in the calculation sheet made by the management. Again, in relation to December 1993, the wages paid to the workman was Rs.1075/- and the number of days admitted by the management was only 27 days. In the same year in January, 1993, if the wages for 31 days were Rs.875/-, it could not have been Rs.1075/- for mere 27 days. According to her, the actual number of days of workman should C.W.P. No.3349 of 1999 -9- also be taken only 31 days which was what the copy of attendance register which the workman had filed would show. I have not the benefit of information from either counsel of how there is a variation in wages for a whole months from January 1993 and December, 1993 as above but I am prepared to concede in favour of the workman that the workman is entitled to count 31 days of work in December and 28 days of work in November 1993. By such a reckoning, the workman would have completed 240 days in the calendar year 1993. 9. The point, however, shall still be seen whether the fact that the workman had completed 240 days in a calendar year would be sufficient to complain of non-compliance of Section 25-F. I have already referred to at length the interpretation as canvassed by learned counsel appearing for State and the reliance of the judgment of Hon'ble Supreme Court that he made on. The Section 25-F also has a particular objective that only a person who had continuous service on the date when he was being terminated to demand a notice. There could be instances where a workman had worked for the period of 240 days in a year, absented himself, say for a year and again, if he resumed work for a few days say for 30 days, could he demand that he be served with notice under Section 25-F if he were to be terminated in the next year, although he did not have 240 days before the date of termination? The law only benefits a workman who had 240 days of continuous service prior to the date when the termination is actually effected. In Mohan Lal Vs. Bharat Electronics Ltd. (1981) 3 SCC 225 observed while interpreting Section 25B(2): "Section 25B(2) comprehends a situation where a workman is not in employment for a C.W.P. No.3349 of 1999 -10- period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months and counting backwards from the relevant date is the date of retrenchment" (emphasis supplied). Admittedly, the workman did not have 240 days prior to 21.05.1994. However this interpretation fails in hard situations where the workman shall have had better opportunity to complain, as in this case if the termination were to have been made in December 1993, the workman would have had 240 days of continuous service and when the termination was previous effected, the workman could have complained that there was no compliance of Section 25-F. The same benefit is not available because at the when the termination is effected in May, 1994, the workman had not 240 days prior to the date of termination. It may seem without logic but all laws do not conform to logic. I only feel constrained to take this interpretation only because it accords with the decision of the Hon'ble Supreme Court in Dayabhai Amarsinh's case (supra) and Mohan Lal's case (supra). 10. The writ petition, under the circumstances, fails and it is dismissed. No costs. (K. KANNAN) JUDGE August 13, 2009 Pankaj*