THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.1425 of 2003 MONDAY THE 10TH DAY OF AUGUST, 2009 Between: Voith India Employees Union, 1-1-256, Bhagavathnoor, Begumpet, Hyderabad .. Appellant and M/s Voith India Private Limited, (Now renamed as Voith Turbo Pvt. Ltd.) Industrial Estate, Nacharam, Hyderabad And others .. Respondents THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.1425 of 2003 JUDGMENT: (Per the Ho’nble Sri Justice Sanjay Kumar) The award dated 20-10-1998 in I.D.No.40/1995 on the file of the Industrial Tribunal-II, Hyderabad directing reinstatement of the workman D.R.Krishna, with continuity of service was set aside by the learned Single Judge in W.P.No.1618/1999 by order dated 27-02-2003. Aggrieved thereby, the employees union, which espoused the cause of D.R.Krishna before the Tribunal, is in appeal. The short point which arose for consideration in the writ petition was as to the entitlement of the workman to claim the protection of Section 25-F of the Industrial Disputes Act, 1947. Under the scheme of the Act of 1947, protection under Section 25-F thereof would only be available if the workman had been in continuous service for not less than one year under the employer. Section 25-B (2) of the Act of 1947 defines continuous service of a workman who is not covered by Clause (1) of Section 25-B. It states that during the period of 12 calendar months preceding the date with reference to which calculation is to be made, such workman should have actually worked under the employer for not less than 240 days in a case not concerning employment below the ground or in a mine. In the instant case, the award of the Industrial Tribunal, which was under challenge in the writ petition, clearly demonstrates that the service rendered by the workman under the employer during the period August 1993 up to September 1994 was taken into account. The said period stretches over a period of 14 calendar months and not 12 months as stipulated in the statute. It was not disputed before the learned Single Judge that if the service rendered by the workman during the 12 calendar months prior to his termination from service in September 1994 is taken into consideration, he would not have put in 240 days as required under Section 25-B (2) of the Act of 1947. Accordingly, the learned Single Judge held that the workman was not entitled to the protection under Section 25-F of the Act of 1947 and set aside the award directing his reinstatement into service. Before us, Sri A.K.Jayaprakash Rao, learned Counsel appearing for the appellant/workman contended that the approach of the learned judge in reckoning the total period of service rendered by his client was not correct, inasmuch as holidays during the calendar months have not been taken into account. He also submitted that his client was actually paid for a period longer than that spoken of by the management witness before the Industrial Tribunal and therefore, if the said period is also taken into account, his client would have completed more than 240 days in the service of the employer. The learned counsel however fairly conceded that this aspect has not been raised either before the Industrial Tribunal or the learned Single Judge. In the absence of material or foundation to support such a plea, it is not open to the workman to build up a wholly a new case in this appeal. As matters stand, applying the statutory norms laid down in Section 25-B (2), it is clear that the workman had not completed 240 days of service in the 12 calendar months preceding his termination from service. That being so, he cannot seek the protection of Section 25-F of the Act of 1947 and attack his termination from service on the ground that the same was in violation of the procedure prescribed in the said Section. We therefore find no reason to interfere with the order passed by the learned Single Judge. The writ appeal is devoid of merits and is accordingly dismissed. No costs. _________________ B.PRAKASH RAO,J _________________ SANJAY KUMAR,J Dt: 10-08-2009 Grk