IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13368 of 2009 Date of Decision : May 19, 2010. The Divisional Forest Officer (Social Forestry), Bhiwani, and another ...... Petitioners . Versus. Sh. Attar Singh and others ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Addl. A.G., Haryana, for the petitioners. Mr. Rakesh Nehra, Advocate, for respondent No. 1. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition is for setting aside of the Award dated 17.09.2007 (Annexure-P-1), passed by the Industrial Tribunal- cum-Labour Court, Rohtak, vide which the reference had been answered in favour of the respondent No. 1/Workman, holding him entitled to reinstatement in service with continuity thereof and 50% back wages from the date of demand notice, i.e., 15.09.2003. Counsel for the petitioner contends that the Labour Court had erroneously taken into consideration the period from January, 2002 to December, 2002, for calculating the days, which respondent/Workman had put in service with the petitioner/Management in one calendar year and had given a finding that the Workman had worked for 299.5 days. He contends that the relevant period, which was required to be taken into consideration for calculating the days, which respondent/Workman had put in service with petitioner/Management, would have been from August, 2002, to July, 2003 as the respondent/Workman had averred in his claim statement that he had worked with the petitioner/Management till 30.06.2003 and his services were terminated on 01.07.2003. He contends this on the basis of Section 25-B of C.W.P. No. 13368 of 2009. -2- the Industrial Disputes Act, 1947, (hereinafter referred to as “the Act”) that 12 calendar preceding months from the date of his termination has to be taken into consideration and since the date of termination is the date of reference, July, 2003 would have to be taken into consideration for calculating 12 preceding months as provided under Section 25-B of the Act and, thus, the relevant period would be June, 2002 to July, 2003 as date of termination is 01.07.2003. He, however, concedes that the respondent/Workman would complete 240 days in 12 preceding months from the date of his termination, if July is excluded from the period to be taken into consideration for calculating 12 preceding months from the date of his termination. This he states on the basis of details of working days of respondent/Workman, which has been placed on record by the petitioner/Management. On this basis, he contends that the impugned Award passed by the Labour Court cannot be sustained. On the other hand, counsel for respondent/Workman submits that the provisions as contained in Section 25-B of the Act itself spells out that 12 calendar months preceding the date with reference to the calculation which is to be made, is taken into consideration, which would be the date of termination. Since, the termination is 01.07.2003, 12 preceding months would be from July, 2002, to June, 2003. I have heard counsel for the parties and have gone through the records of the case. For disposing of this case and deciding the controversy, which is involved in the present case, as has been raised by counsel for the petitioner/Management, reference to Section 25-B of the Act would be essential, which reads as follow :- “SECTION 25-B. 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 C.W.P. No. 13368 of 2009. -3- 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 purposes 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 agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the previous years; (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.]" Sub-sections (1) and (2) of Section 25-B of the Act provide deeming fiction as to in what circumstances a Workman could be said to be in continuous service for the purpose of Chapter-V-A of the Act ‘Lay-off and retrenchment’. The purport of this section is that if a Workman has to be in uninterrupted service of the establishment, including service which may be interrupted on account of sickness, authorised leave, an accident, a strike, which is not illegal, a lock-out or a cessation of work, that is, not due to any fault on the part of the workman, shall be said to be in continuous service for C.W.P. No. 13368 of 2009. -4- that period. Thus, to attract the provisions of Section 25-F of the Act, one of the conditions required is that a Workman is employed in any industry for a continuous period, which should not be less than one year, stands fulfilled irrespective of number of days in the 12 months he has actually worked with uninterrupted service as permissible under Section 25-B of the Act. However, the Workman must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances spelt out in sub-section (1) of Section 25-B of the Act. The requirement for counting such service in order to earn benefit of continuous service by a Workman is that he is a Workman as defined in the Act and the employer is the same. The employer must be one and the same, but it is not always necessary that the Workman should work in the same capacity during the required period in order to earn continuous service as defined in Section 25-B of the Act. The Workman must be in employment of the employer concerned not only on the days he has actually worked, but also on the days on which he has not worked and interpretations as provided in Section 25-B(1) of the Act, if any, have to be ignored to treat the Workman in uninterrupted service and has to be counted and included in continuous service for the period for which the Workman has been in service. Sub-section (2) of Section 25-B of the Act incorporates another deeming fiction, but for an entirely different situation. It comprehends a situation where a Workman is not in continuous service as per the deeming fiction indicated in Sub-section (1) of Section 25-B of the Act for a period of one year or six months. He will be deemed to have been in continuous service for a period of one year, if he satisfies the condition in Clause (a) of sub- section (2) of Section 25-B of the Act, i.e., 190 days if he is employed underground in a mine; and 240 days in any other case as specified in Clauses C.W.P. No. 13368 of 2009. -5- (a) and (b) of sub-section (2) of Section 25-B of the Act. Provisions of the section postulate that if a Workman has put in service for at least 240 days with his employer, immediately prior to the date of his termination, he shall be deemed to have served the employer for a period of one year to get the benefit of Section 25-F of the Act. In other words, in order to invoke fiction in sub-section (2) (a) of Section 25-B of the Act, it is necessary to determine first the relevant date, i.e., the date of termination of service, which is complained of as retrenchment. After that date is ascertained, to determine the days Workman had worked immediately prior to the date of retrenchment within a period of 12 months thereto, for that the Court has to move backward to a period of 12 months. If the Workman has rendered service for a period of 240 days within a period of 12 months immediately prior to the date of his termination, it will have to be assumed that the Workman is in continuous service for a period of one year. He would then be taken to have satisfied the eligibility, qualification as provided under Section 25-F of the Act, entitling him the benefit thereof. Section 25-B (2) of the Act comprehends a situation, where the Workman is not in employment for a full period of 12 calendar months, but has rendered service for the days specified in Clauses (a) and (b) of sub-section (2) of Section 25-B of the Act within a period of 12 calendar months, commencing and counting backward from the relevant date, i.e., the date of termination. The thrust of Section 25-B of the Act is the existence of relationship of master and servant for the period during which the Workman has worked during the preceding 12 months from the relevant date and not the existence of contract of employment during the entire period of 12 months. The deeming provisions in Section 25-B (2) of the Act by fictionally treating interrupted service as also continuous service was introduced by the C.W.P. No. 13368 of 2009. -6- Legislature apparently to mitigate the hardships of a Workman, who is made to actually serve under an employer intermittently, but actually serves him for a period of not less than 240 days in the preceding 12 months from the date his services were terminated. In view of the above, contention of counsel for the petitioner that it is the 12 calendar months, which have to be taken into consideration for counting the days for which the Workman had worked with the Management, cannot be accepted. Merely, because the Workman has worked for one or two days in a particular month would not mean that the said month would be counted as a whole to be taken into consideration for calculating the period for which the Workman has worked with the Management. What has to be counted is 12 preceding months from the date of termination and not 12 preceding calendar months including the whole month in which the termination has taken place irrespective of the date of termination, as has been asserted by counsel for the petitioner. This contention of counsel for the petitioner is against the provisions of Section 25-B(2)(a) of the Act itself, thus, unsustainable. As per Section 25-B (2) (a) of the Act, the period of one year is to be taken with reference to the date of termination and, therefore, it would mean 12 months preceding the date of his termination. In the present case, the services of the respondent/Workman as per his own statement and claim, were terminated on 01.07.2003 and, therefore, 12 preceding months would be from 30.06.2003 backwards to 01.07.2002. It is, thus, apparent from the language of Section 25B(2)(a) itself that the date with reference to which calculation is to be made is the benchmark, but period of 12 calendar months prior to that has to be taken into consideration, which is from 01.07.2002, to 30.06.2003, in the case in hand as the date of termination is 01.07.2003. In view of this and in view of C.W.P. No. 13368 of 2009. -7- the admission made by counsel for the petitioner/Management on the basis of the records that the respondent/Workman would complete more than 240 days, if period is taken into consideration from July, 2002, to June, 2003, no fault can be found with the Award passed by the Industrial Tribunal-cum-Labour Court, Rohtak, which would call for any interference by this Court in exercise of writ jurisdiction. Finding no merit in the present writ petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE May 19, 2010. sjks.