1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5658/02 Ajmer Central Cooperative Bank Ltd. vs. Labour and Industrial Tribunal & Anr. Date of order : 2/2/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Brij Sharma for Shri R.B. Mathur for the petitioner. Shri Dinesh Sharma for Shri Prahlad Singh for the respondent. ****** This writ petition has been filed by the petitioner challenging the award of the Labour Court dated 1.6.2002 whereby the reference made to it by the appropriate Government on the question of validity of the removal of respondent-workman by the petitioner with effect from 1.4.1992, which has been answered in the terms that his removal was bad in law and that the respondent-workman would be entitled to reinstatement in service with 50% back wages, continuity in service and cost of Rs.5,000/-. Shri Brij Sharma, learned counsel for the petitioner has argued that the learned Labour Court has erred in law in holding that the termination of the respondent was 2 made in violation of Section 25-F of the Industrial Disputes Act. It was argued that the finding aforesaid has been recorded by the Labour Court on the premises that the respondent-workman worked for 305 days during the year 1987, whereas in the same self award Labour Court found that the working period of respondent-workman during the year 1988 was 97 days, in 1989, 48 days, in 1990, 63 days, in 1991, 95 days and in 1992, 28 days. It was therefore argued that provisions of Section 25-B of the Industrial Disputes Act were completely misunderstood and misapplied by the learned Tribunal. The award be therefore set aside. Shri Dinesh Sharma, learned counsel for the respondent opposed the writ petition and submitted that the learned Labour Court was not justified in recording a finding that there was violation of Section 25-F. In doing so, the Learned Labour Court relied on the judgement of this Court in Chief Engineer, Irrigation vs. Kamlesh & Anr.-1995 (1) page 704. It was argued that as per the law, it was not necessary for the workman to prove that in every year when he was serving 3 he worked for 240 days. If he was able to prove that he worked for 240 days in any of the callender years, that was sufficient requirement of Section 25-F. The award is therefore perfectly just and legal. Having heard the learned counsel for the parties, I find that the learned Labour Court indeed recorded a finding that the workman was able to prove that he worked for 305 days only in the year 1987 and that the work was confined to just 95 in the year 1991 and 28 days in the year 1992. In any case, the workman failed to prove before the Labour Court that he worked for 240 days in the calender year immediately preceding the date of his retrenchment, which was 1st April, 1992. According to the provisions of Section 25-B, the computation of period of 240 days has to be made with reference to the alleged date of retrenchment and counting backwards it has to be discovered that the workman has worked for 240 days within the callender year immediately proceedings the date of such retrenchment. The view taken by the Labour Court that the workman has proved that he worked for 240 4 days during in any one years out of the period for which he was employed with the management, cannot be suspended. The Supreme Court in Mohan Lal vs. The Management of M/s. Bharat Electronics, Ltd.-AIR 1981 SC page 1253 while dealing with the question of interpretation of Section 25-B of the Act held that sub-section (2) of Section 25-B of the Act introduces a deeming fiction where the 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 for a period of one year, if the workman, during a period of twelve calender 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 workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case. Commending from the date of termination backwards, he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter V-A of the Act. 5 In view of the aforesaid pronouncement of Supreme Court, the view of the Labour Court cannot be sustained. In the result, this writ petition is allowed. The award passed by the Labour Court is set aside. (MOHAMMAD RAFIQ), J. RS/