W.P. (C) No. 3710/2008 Page 1 of 18 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No. 3710/2008 % Judgment reserved on: 05.03.2010 Judgment delivered on: 19.04.2010 Rakesh Singh ……........ Petitioner. Through: Mr. Anuj Aggarwal, Advocate versus Delhi Transport Corporation. …...... Respondent. Through: Mr.Nav Rath Chaudhry, Advocate. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes KAILASH GAMBHIR, J. * 1. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks quashing of the award dated 29.3.2007 passed in I.D. No. 437/2005 whereby the reference was answered against the petitioner workman. 2. Brief facts as set out by the petitioner and relevant for W.P. (C) No. 3710/2008 Page 2 of 18 deciding the present case are that the petitioner was in the employment of the respondent Corporation since 1.1.1999 on compassionate basis and that he fell ill on 27.5.2001 and after that reported for duty only on 16.1.2002 when he was not allowed to join back on his duties by the respondent. Thereafter the petitioner raised an industrial dispute bearing ID No. 437/05 whereby vide order dated 29.3.2007 the reference was answered against the workman and in favour of the respondent DTC. Feeling aggrieved with the same, the petitioner has preferred the present petition. 3. Mr. Anuj Aggarwal, counsel for the petitioner submitted that the termination of the petitioner is stigmatic and, therefore, without a prior chargesheet and setting up an enquiry his services could not have been terminated by the respondent DTC. The contention of the counsel for the petitioner was that even if the petitioner failed to establish his continuous employment with the respondent DTC for a period of 240 days preceding the date of his termination, still his services could not have been terminated or dispensed with by the respondent without following the due procedure of holding an enquiry against the petitioner. In the alternative, the counsel submitted that the petitioner has proved on W.P. (C) No. 3710/2008 Page 3 of 18 record that he had worked for 240 days preceding the date of his termination and the onus shifted on the respondent to rebut the same. Counsel further submitted that admittedly the respondent did not comply with the procedure prescribed under Section 25 F of the I.D. Act before taking action against the petitioner terminating his services. In support of his arguments, counsel for the petitioner placed reliance on the following judgments:- 1. Director, Fisheries Terminal Division vs Bhikubhai Meghajibhai Chavda 2009 (13) SCALE 636. 2. Mrs. Saritava S. Melwani vs Ms. Pallavi V. Talekar & Ors. (2009) I LLJ 116 Bom. 3. Delhi Cantonment Board vs Central Govt. Industrial Tribunal and Ors. (2006) III LLJ 752 Del. 4. R.M. Yellatti vs The Assistant Executive Engineer 2005 (9) SCALE 139. 5. Shri Jairaj N. Shetty vs The Union of India (UOI) 2005 (6) Bom CR 221. 6. M/s Scooters India Ltd. vs M. Mohammad Yaqub & anr. 2000 (7) SCALE 570. 7. M.C.D. vs Praveen Kumar Jain & Ors. (1998) 9 SCC 468 W.P. (C) No. 3710/2008 Page 4 of 18 8. Chief Engineer, Irrigation vs Kamlesh & Ors. (1996) IILLJ 316 Raj. 9. Kukadi Irrigation Project vs Waman S/o Babanrao Bhujbal & Anr. 1994 (68) FLR 639 (Bom). 10. Gaurishankar Vishwakarma vs Eagle Spring Industries Pvt. Ltd. & Ors. (1994) III LLJ 689 Bom. 11. Hutchiah vs Karnataka State Road Transport Corporation (1983) 1 LLJ 30 (Kant) 12. Jai Shanker vs State of Rajasthan (1996) 1 SCR 825. 13. Employers in Relation to Digwadih Colliery vs Their Workmen AIR 1966 SC 75. 4. Refuting the said submissions of counsel for the petitioner, counsel for the respondent contended that the present writ petition is not maintainable as the petitioner has no cause of action to file the same. He further submitted that the petitioner was a daily wager and his services were dispensed with in accordance with the terms and conditions of the agreement executed between the petitioner and the respondent. While supporting the award passed by the labour court, the counsel submitted that the jurisdiction of this court under Article W.P. (C) No. 3710/2008 Page 5 of 18 226/227 of the Constitution of India to interfere with the award would arise only when the impugned award is grossly illegal and perverse which in the present case is not the situation and this court would be acting beyond its powers in interfering with the findings of facts arrived at by the court below. 5. I have heard learned counsel for the parties at considerable length and gone through the records. 6. The case set up by the petitioner workman in his statement of claim was that he had joined the employment of the respondent management w.e.f. 1.1.1999 as a Retainer Crew Conductor and during the course of his services he fell ill on 27.5.2001 and, therefore, proceeded on leave from 28.5.2001. As per the petitioner workman, he recovered from his illness on 16.1.2002 and submitted his medical certificate issued by the primary health centre of MCD, but was not allowed to join his duties and in this way he was illegally terminated from his service after having put in more than 240 days of continuous service preceding the date of his termination. The case of the respondent management on the other hand was that the petitioner was a daily wager and he remained unauthorisedly absent from his duties for a period of 184 days from June 2000 to May, 2001 W.P. (C) No. 3710/2008 Page 6 of 18 and then from 28th May, 2001 to 6th June, 2001 without seeking any permission or sanction of his leave. The respondent management further took a stand that since the petitioner became irregular during his probation period, so his services were dispensed with in accordance with para 4 (XIV) of the Executive Instructions governing the appointment of Retainer Crew Conductor. In order to prove his case, the petitioner workman examined himself as WW1 while the respondent management examined one Shri Mohd. Yusuf as MW1. The learned Labour Court, based on the testimony of the management witness MW 1, reached the conclusion that the petitioner workman remained unauthorisedly absent from his duties in the year 2000 – 2001 for a period of more than 184 days. On the other hand, the petitioner workman failed to prove on record that he remained on medical leave from 28.5.2001 till 15.1.2002, which period was otherwise of no relevance as the petitioner remained absent from his duties w.e.f. June 2000 till May 2001 and from 28.5.2001 till 6.6.2001. 7. It is a settled legal position that to claim the benefit of Section 25-F of the ID Act, the workman is required to first establish the fact that he had worked for 240 days in continuous service in a year preceding the date of his termination. Section 25B of the ID Act W.P. (C) No. 3710/2008 Page 7 of 18 defines continuous service and as per the said section, the service, which may be interrupted on account of sickness or authorized leave or due to 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 will also be taken as a continuous service unaffected by the interruptions created due to the aforesaid reasons. It would be useful to reproduce the said section here: 25B. DEFINITION OF CONTINUOUS SERVICE. - For the purposes of this Chapter, - (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 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 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 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 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) ninety-five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. Explanation : For the purpose of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which - (i) he has been laid-off under an W.P. (C) No. 3710/2008 Page 8 of 18 agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the previous year; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks. Dealing with the expression “continuous uninterrupted service” and also the interpretation of the word “year” in Section 25B(1) of the ID Act the Division Bench of this Court in Suraj Pal Singh vs The Presiding Officer and Anr. 124(2005) DLT 248 held as under:- 21. In view of the above judgments, the expression "continuous" or "uninterrupted service" means and refers to the days during which the workman was employed and continued to be in service of the employer. It may be stated that absence on account of sickness, authorised leave, accident or strike, which is not illegal or lock-out is to be regarded as a period during which a workman has continued in uninterrupted service of the employer. It may also be noted here that any artificial breaks given malafidely by an employer should not be recognised and a workman should be treated to be in continuous service. (Refer Yogendra Singh Rawat v. Hemwati Nandan Bahuguna Garhwal University and Ors. : [1998]1SCR685 and Bhagwati Prasad v. Delhi State Mineral Development Corporation : (1990)ILLJ320SC . Courts and Tribunals will thereforee always have power, while applying Section 25B(1) to examine whether the cessation of work was due to any fault on the part of the workman. They can ignore any artificial breaks malafidely given by an employer. Interpretation of the word "year": W.P. (C) No. 3710/2008 Page 9 of 18 22. The words used in Section 25B(1) is "one year" but the said term has not been defined in the Act. The word "year" has been defined in the General Clauses Act, 1897. Section 3(66) of the aforesaid Act defines the term `year' to mean a period reckoned according to the British Calendar i.e. a period of 12 months from January to December. For the sake of convenience, Section 3(66) of the General Clauses Act, 1897 is reproduced below:- "Year" shall mean an order reckoned according to the British calendar." 23. However, we do not think that the aforesaid definition as given in the General Clauses Act, 1897 is applicable and should be applied, while interpreting Section 25B(1) of the Act. If definition given in Section 3(66) of the General Clauses Act, 1897 is accepted, any workman who joins employment after 1st January, will be denied benefit of Section 25B(1) in the first year of employment. This will be extremely unjust and unfair and such interpretation should not be accepted as we are dealing with a social welfare and a beneficial legislation. 24. The Supreme Court in the case of Aspinwall and Company v. Lalitha Padugady and Ors. : AIR1996SC580 had examined the provisions of Payment of Gratuity Act, 1972 and Sections 2 and 4 thereof. The expression "continuous service for not less than 5 years" came up for consideration before the Supreme Court in the said case. After examining the said Sections the Supreme Court came to the conclusion that complete or continuous service has to be calculated with reference to the date on which an employee gets employment. It was held that this is the stage, which is starting point and thereafter the period has to be calculated. Thus, the period of continuous service is to be reckoned from the date of joining of the employment. The Supreme Court rejected the contention that this period of continuous service has to be reckoned with reference to a calendar year as defined in the General Clauses Act,1897. 25. We feel that in view of the fact that the present legislation is social, beneficial and a welfare legislation, workman should be given benefit under Section 25B(1), if he has worked for a continuously or uninterruptedly for a period of 12 consecutive months anytime during the course of his employment. It is not necessary that a worker should have continuously or uninterruptedly worked from January to December in a particular calendar year. Thus, continuous or un-interrupted employment for period of 12 consecutive months will satisfy requirement of Section 25B(1) of the Act. Whether 240 days is equal to "one year" under Section 25B(1)? W.P. (C) No. 3710/2008 Page 10 of 18 26. Section 25B(1) uses the word "one year", which in common parlance means period of 12 months or 365 days. Can we while interpreting Section 25B(1) reduce this period to 240 days? 27. Sections 25B(1) of the Act being beneficial and welfare provision has to be liberally and broadly interpreted, yet at the same time we cannot amend and modify a statutory provision by incorporating and adding words. Our role is to interpret the law as it exists and not to add and subtract words already used by the legislature or usurp the role of the legislature. The legislature in Section 25B(2) has referred to period of "240 days in the preceding year" following the date of termination as the criteria to determine and decide whether a workman has been in continuous service for a period of one year. The legislature, however, has deliberately not mentioned the period of 240 days during the period of one year as the criteria in Section 25B(1) of the Act. Section 25B(1) nowhere specifies that if a workman has worked for a period of 240 days in a period of "one year", he is deemed to be in uninterrupted service for "one year". The period of 240 days specified in Section 25B(2), cannot be legislated and read into sub-section (1). We cannot, thereforee, legislate and incorporate the words "240 days" into Section 25B of the Act. Our judicial pen cannot write these words into the aforesaid sub-section and read them in Section 25B(1), when the legislature has consciously and deliberately not used these words. The requirement of legislature, as far as Section 25B(1) of the Act is concerned, is clear and unambiguous. It refers to "continuous" or "uninterrupted" service for a period of one year i.e., 12 consecutive months. We cannot by judicial interpretation decrease this period of 365 days to 240 days. Of course the period of one year should be interpreted liberally as has been done in the present judgment. The two judgments, in the case of Moti Ceramic Industries (supra) and Metal Powder Co. Ltd. (supra) support and have similarly interpreted Section 25B(1) and (2) of the Act. Bombay High Court in the case of New Great Eastern Spinning and Weaving Co. Ltd. v. Vasant Mahadeo Bidia reported in 2005 (1) CLR 50 has also taken a similar view. 28. We wish to further clarify that the above interpretation is not against workmen. The legislature has been careful and cautious to include certain periods like authorised leave, legal strikes, lock outs, periods during which the employer illegally refuses to permit the workman to do work, etc., as a period during which the workman is deemed to be in continuous or uninterrupted service. thereforee in a given case, a workman may have worked for in fact less than 240 days, but after including the specified periods mentioned in section 25B(1), his continuous or uninterrupted service might be for a period of 12 consecutive months. Accordingly, we hold that period of 240 days is not relevant as far as Section 25B(1) is concerned as the figure "240 days" is not mentioned in the said sub-section and is W.P. (C) No. 3710/2008 Page 11 of 18 mentioned only in sub-section (2). It is not possible for this Court to legislate and add the words 240 days in Section 25B(1) of the Act. Section 25B(2) of the Act: 29. Sub-section (2) of Section 25B also incorporates a deeming fiction. As per sub-section (2) to Section 25B, if a workman has worked for 240 days or 190 days (in case he is employed below ground in a mine) during the period of 12 calendar months preceding the date with reference to which calculation is to be made, he shall be deemed to be in continuous service for a period of one year. In case of a retrenchment, the reference date will be the date on which the retrenchment order is passed. thereforee, if a workman has worked for 240 days (190 days in case he has worked below ground in a mine) during the period of 12 calendar months preceding the date of his retrenchment, the said workman is deemed to have rendered continuous service for a period of one year. Section 25B(2) refers to a period of 12 months immediately preceding and counting backwards from the relevant date and not to any other period of employment. If a workman has worked for more than 240 days during this period of 12 months prior to his retrenchment, he is deemed to be in continuous service for a year. The words "preceding the date with reference to which calculation is to be made" are not redundant or otiose. The period of 12 months mentioned in Section 25B(2) is not thereforee any period of 12 months but the immediately preceding 12 months with reference to which calculation is to be made. The two Clauses 25B (1) and 25B (2) in operation: 30. Section 25B(2) as per the clause itself, comes into operation when a workman has not been in continuous service within the meaning of sub-section (1) for a period of one year. However, in practice and for all practical purposes, a workman will be entitled to protection under section 25F of the Act, if conditions mentioned in either of the two clauses are satisfied. The sub-sections are thereforee in alternative. Requirement of Section 25B(1) is uninterrupted service for a period of one year and under sub-section (2) requirement is service for a period of 240 days (or 190 days in case worker is employed below ground in a mine) during the preceding 12 calendar months prior to the date of termination/retrenchment. By the deeming fiction in Section 25B(2), a workman who has worked for aforesaid period in the preceding 12 calendar months prior to the date of termination/retrenchment is deemed to have been in continuous service for not less than one year. The two provisions, namely, of Section 25B(1) and 25B(2) are separate and distinct. The requirements and conditions to be satisfied to some extent are also different. W.P. (C) No. 3710/2008 Page 12 of 18 In the recent decision of the Apex Court in Director, Fisheries Terminal Division vs Bhikubhai Meghajibhai Chavda 2009(13) SCALE 636 the Apex Court dealing with the similar question as to how the period of 240 days in a period of 12 calendar months should be reckoned, held as under:- 14. Section 25B of the Act defines "continuous service". In terms of Sub-section (2) of Section 25B that if a 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 240 days within a period of one year, he will be deemed to be in continuous service. The respondent claims he was employed in the year 1985 as a watchman and his services were retrenched in the year 1991 and during the period between 1985 to 1991, he had worked for a period of more than 240 days. The burden of proof is on the respondent to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. The law on this issue appears to be now well settled. This Court in the case of R.M. Yellatty v. Assistant Executive Engineer: (2006) 1 SCC 106 has observed: However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. 15. Applying the principles laid down in the above case by this Court, the evidence produced by the appellants has not been consistent. The appellants claim that the respondent did not work for 240 days. W.P. (C) No. 3710/2008 Page 13 of 18 The respondent was a workman hired on a daily wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the employer/appellants to prove that he did not complete 240 days of service in the requisite period to constitute continuous service. It is the contention of the appellant that the services of the respondent were terminated in 1988. The witness produced by the appellant stated that the respondent stopped coming to work from February, 1988. The documentary evidence produced by the appellant is contradictory to this fact as it shows that the respondent was working during February, 1989 also. It has also been observed by the High Court that the muster roll for 1986-87 was not completely produced. The appellants have inexplicably failed to produce the complete records and muster rolls from 1985 to 1991, inspite of the direction issued by the labour court to produce the same. In fact there has been practically no challenge to the deposition of the respondent during cross-examination. In this regard, it would be pertinent to mention the observation of three judge bench of this Court in the case of Municipal Corporation, Faridabad v. Siri Niwas: (2004) 8