IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7137 of 2009 VIJAY KUMAR SINGH @ VIJAY KUMAR & KRISHNA KANT ACHARYA . Versus THE STATE OF BIHAR & ORS . ----------- 9 7.4.2010 The petitioners claim to be retrenched workmen of M/s Times Publishing House Ltd. Patna. They pray for setting aside the award dated 27.10.2008 passed in Reference Case No.13 of 1994 by the Presiding Officer, Labour Court, Patna whereby the order of management of M/s Times Publishing House Ltd. Patna terminating the services of the petitioners along with others has been upheld. The petitioners further pray for a direction to the management of M/s Times Publishing House Ltd. Patna to re-instate them in service. The facts of the case in brief are that petitioner no.1 Vijay Kumar Singh @ Vijay Kumar was appointed by the Publishing House Ltd. On 2.6.1986 on monthly salary of Rs.600/- per month as workman for doing the work of bundling of newspapers. The petitioner was terminated from service on 17.11.1988 without following the conditions precedent to retrenchment of workman as provided in section 25-F of the Industrial Disputes Act, 1947. The petitioner states that he continuously worked for more than 240 days in Twelve Calendar months preceding. The case of petitioner no.2 Krishna Kant Acharya is that he was appointed by the Publishing House Ltd. On 1.5.1987 on monthly salary of Rs.500/- per month for doing the work of bundling of newspapers etc. He continuously worked for more than 240 days in Twelve Calendar months preceding and was terminated from service on 24.6.1989 without observing the requirement of section 25-F of the 2 Industrial Disputes Act, 1947. It is relevant to state that some more workmen were also terminated by the management. The petitioners claim that they are members of Adyogic Mazdoor Sangh, Patna and consequent upon their termination, they first approached and requested the respondent Publishing House Ltd. to allow them to continue their respective work but having failed in their attempt the Adyogic Mazdoor Sangh on the request of the workmen took their case with the Management. Thereafter, the matter was referred for adjudication before the Presiding Officer, Labour Court, Patna vide Reference Case No.13 of 1994. The terms of reference was as follows: “Whether termination of services of Sarashri Vijay Kumar Singh, Jai Singh, Krishna Kant Acharya, Parmanand, Kameshwar Prasad Singh and Om Prakash all workmen of M/s Times Publishing House Ltd., Frazer Road, Patna is proper? If not, whether they should be reinstated on the job or/and he compensated” A written statement was filed by the Sangh on behalf of the retrenched workmen including the petitioners. Similarly, a written statement was also filed on behalf of the Management. The Sangh examined altogether six witnesses in the proceeding including the evidence of Vijay Kumar Singh, petitioner no.1 as W.W.1 and Krishna Kant Acharya, petitioner no.2 as W.W.2. A number of documents namely photo copy of salary sheets (Ext.1 to 1/D ), photo copy of notice (Ext.2), Identity Card(Ext.3 to 3/A), petition regarding raising the dispute dated 4.7.1989(Ext.4), Acknowledgement (Ext.5) and notice of conciliation officer memo no.11130 dated 30.9.1989 were exhibited on 3 behalf of the workmen in support of their claim of having continuously worked for more than 240 days in a Calendar year. The workmen produced salary sheets of the month of August,1987, December, 1986, December, 1987, March 1988 and November, 1987. The Management also examined three witnesses in support of their case and also exhibited notice dated 18.8.1989 and 15.9.1989(Ext.A to A/1), Balance sheet (Ext.B/1), Auditor’s report (Ext.B) and Under Certificate of Posting (Ext.C). The case of the petitioners is that they were employed on monthly salary basis and they continuously worked for more than 240 days in calendar year preceding their termination. Thus, the claim of the petitioners that as they had worked for 240 days in a calendar year, their services could not be retrenched without following the mandatory provisions of section 25-F of the Industrial Disputes Act which entails giving one month’s notice in lieu of payment. On the other hand, the Management stated that the petitioners themselves did not turn up for work and they did not continuously worked for twelve months, preceding the retrenchment. Moreover, they did not produce any document to show that they had worked continuously for 240 days in a calendar year. It is further their case that the petitioners had not produced any appointment letter. The Presiding officer, Labour Court in paragraph 8 held that the workmen had not proved that they have been in continuous employment for a year. From perusal of the Award of the Presiding Officer, it does 4 KHAN not appear that he had specifically held that the petitioners did not work for 240 days in last one year preceding the date of their retrenchment. Continuous employment for the purposes of section 25-F of the Industrial Dispute Act, refers to working for 240 days in Twelve Calendar months preceding date of retrenchment. In other words, even if the workman is laid off for one month and on calculation it appears that he had worked for 240 days in preceding 12 months, he would be entitled to benefit under section 25F in case of retrenchment. This court finds that the Presiding Officer has not specifically come to a finding that the petitioners have not worked for 240 days in the preceding calendar year and as such the matter needs reconsideration by the Presiding Officer, Labour Court. Further more, the judgment relied in the case of Sanjay Kumar Tiwary & Ors Vs State of Bihar & Ors, reported in 2008(2) P.L.J.R. 265(DB) would not be applicable in the instant case as there is no finding by the Labour Court that the petitioners got their remuneration or salary on monthly basis or daily wage basis. For the reasons stated above, the impugned Award dated 27.10.2008 passed by the Presiding Officer, Labour Court is set aside and the matter is remitted to it for fresh adjudication of the matter. In the result, this writ petition stands allowed to the extent indicated above. (S.P.Singh,J)