HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 7480 OF 2003 . DATED 12th September, 2011. BETWEEN The Commissioner, Ramachandra Puram Municipality, Ramachandrapuram,EG District, Rep. By its Commissioner …Petitioner And The Industrial Tribunal-cum-Labour Court, Visakhapatnam and ors ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 7480 of 2003 ORDER: The Ramachandrapuram Municipality represented by its Commissioner challenges the Award dated 30.12.2002 passed by the first respondent-Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No. 57 of 2001. By the said Award, the Labour Court directed the petitioner- municipality to reinstate the workman-fourth respondent in service without back wages, but with continuity of service only for the purpose of seniority. The fourth respondent herein was engaged as a night watchman on NMR basis vide orders dated 23.07.1990. He was terminated from service on 19.02.1992. Thereafter he approached the Andhra Pradesh Administrative Tribunal through O.A.No. 79 of 1992 which was disposed of by order dated 25.01.1995 directing the petitioner-municipality to verify service particulars of the fourth respondent- workman and pass necessary orders in terms of G.O.Ms. No. 212, dated 29.4.1994 as per his eligibility. As the workman did not satisfy the conditions prescribed under the said Government Order, his services could not be regularized. Thereafter, he filed I.D.No. 57 of 2001 before the first respondent-Labour Court and the said ID was allowed by Award dated 16.02.2001 passed therein, directing the petitioner-municipality to reinstate the workman in service as stated supra. Hence, the present Writ Petition. The learned Standing Counsel for the petitioner-municipality submitted that the Labour Court ought to have dismissed the ID on the ground of delay and latches. He asserted that the workman had not put in continuous service for one year entitling him for notice under Section 25-F of the Industrial Disputes Act, 1947 and he also failed to establish the same. He further submitted that the Labour Court failed to exercise its jurisdiction under Section 11-A of the Act in the proper perspective and that the findings recorded by its are perverse and opposed to the material placed on record. On the other hand the learned counsel for the fourth respondent-workman submitted that the termination of the workman from service was in fragrant violation of the provisions of the Industrial Disputes Act, 1947, and as such the Labour Court rightly exercised its jurisdiction under Section 11-A of the Industrial Disputes Act, 1947. The contention of the learned counsel for the petitioner is that the workman could not be retrenched as the conditions precedent for retrenchment were not fulfilled and thus the order was in contravention of the provisions of section 25-F of the Industrial Dispute Act,1947. He argued that his client had put in more than one year service which would fall within the ambit of Section 25.B of the Act. This Court while admitting the Writ Petition on 25.04.2003, granted interim stay of operation of the impugned Award subject to compliance of the provisions of Section 17-B of the Industrial Disputes Act, 1947. Heard both sides. Perused the case file scrupulously. It is admitted, being not disputed by both sides that the fourth respondent-workman was appointed as a night watchman on NMR basis vide order date 23.07.1990 and thereafter terminated from service on 19.02.1992. However, it was the case of the petitioner-Municipality that the workman had not put in continuous service and in between the date of appointment and date of termination, he was given 2 or 3 days break for every spell of 89 days. The workman who was examined as WW1 stated that he was paid wages without any break. However, MW1 was unable to speak as to whether during the period of 2 or 3 days break, any substitute in the place of the workman was appointed. As nobody was substituted in the alleged short breaks, it can be presumed that as per Section 25-B(1), the workman had rendered continuous service as the breaks of so called 2 or 3 days in every spell of 89 days was not due to any fault of the workman. Even if there is no continuous and uninterrupted service for one year, for the sake of argument, within the meaning of Section 25.F of the Act read with Section 25.B(1) thereof, because of short breaks given by the employer, the workman would be entitled to the benefit of Section 25.F if even after excluding the period of short breaks, the number of days during which the workman actually worked under the employer was more than 240 days as contemplated by Section 25.B(2)(a)Iii). {See: (1985) 4 SCC 78}. Section 25-B of the Act is reproduced hereunder for better understand: 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.” In Digwadih Colliery Vs.Workman (AIR1966 SC 75) it was held by the Supreme Court that service of 240 days in a period of twelve calendar months is equal not only to service for a year but is deemed to be continuous service even if interrupted. Therefore, even though the fourth respondent was appointed on NMR basis, once he has rendered continuous uninterrupted service as stated supra for a period of one year or more, within the 'meaning of section 25-F of the Act and his service was terminated for any reason whatsoever, it would have to be read that retrenchment without complying with Section 25-F would be void ab initio and such action would entitle the workman to a declaration for continuation in service. As such, in the case on hand, the retrenchment of workman without complying Section 25.F of the Act is illegal in as much as the petitioner had put in more than one year service. Accordingly the termination of services of the workman is illegal as the management has not complied with the provisions of the Section 25 of the Industrial Disputes Act,1947. With regard to the other contention of the petitioner that the Labour Court ought to have dismissed the ID on the grounds of delay and latches, it is to be seen that the workman after termination of his service approached the Andhra Pradesh Administrative Tribunal by filing OA.No. 5379 of 1992 and after its disposal, the first petitioner-Municipality referred the order to the second respondent herein for its compliance and in the process, the workman had waited for implementation of the order therein by the petitioner-municipality and expecting no order, he approached the Labour Court. As the workman was actively pursuing the matter, it cannot be said that there is delay in approaching the Tribunal. For the foregoing discussion, the Writ Petition is dismissed and the Award of the Labour Court is upheld. There shall be no order as to costs. -------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 12th September, 2011. Msnro