IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.11.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.8932 OF 2003 .. M.Madhu .. Petitioner vs. 1.The Management Tamil Nadu Water Supply and Drainage Board Chennai 600 005. 2.The Presiding Officer Labour Court, Salem Salem District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned Award of the 2nd respondent ID.No.124/99 dated 17.7.2002 and direct the 2nd respondent to reinstate the petitioner in Service will all attendant benefits. For petitioner : Mr.P.Rajendran For respondents : Mrs.Sudarshana Sundar .. ORDER The writ petition is directed against the award passed by the Labour Court in No.124 of 1999 dated 17.7.2002, by which the Labour Court dismissed the claim made by the petitioner for reinstatement with backwages on the ground that the termination of the petitioner is not against law. 2. The petitioner was appointed as a daily rated employee in the Tamil Nadu Water Supply and Drainage Board (TWAD Board) viz., the first respondent on 17.4.1987. It is stated that his appointment was through Employment Exchange and he continued to work as a Watchman till 6.9.1991, when his services were terminated. After representations and based on subsequent settlement entered by the Trade Union with the TWAD Board under section 12(3) of the Industrial Disputes Act,1947 the petitioner https://hcservices.ecourts.gov.in/hcservices/ was stated to have been reinstated on 3.10.1996 and posted in Krishnagiri Division as Watchman and he was again stopped from doing work with effect from 1.9.1997, and it is stated that he was drawing a pay of Rs.3,000/- at that time and there was no termination order passed and no notice was given before termination and no enquiry was conducted. It was, in those circumstances, the petitioner raised the above said industrial dispute. 3. Before the Labour Court, the first respondent management has stated that the petitioner was appointed on daily wages on 17.4.1987 and he was working in the Sub Division, Hosur between 30.4.1987 and 31.5.1990 and since the said godown was closed, he was removed on 1.6.1990 and after one year he was again employed between 12.4.1991 and 5.7.1991 and thereafter between 1.9.1991 and 6.9.1991 at Dharmapuri as Watchman on daily wages. Thereafter, between 3.10.1996 and 31.8.1997, he was employed temporarily at Krishnagiri Fluoride Godown and he was never made as a permanent employee and he was not paid salary of Rs.3000/- per month. While it is admitted that there was a settlement under section 12(3) of the Industrial Disputes Act, the said settlement is applicable only to those who worked in the TWAD Board and who are not regularized as on 1.8.1996, provided they have worked for 480 days in two years and the said settlement is not applicable to the persons who have gone out of employment. 4. Before the Labour Court, on the side of the petitioner, nine documents were marked as Exs.W1 to W9, while there was no documents filed by the TWAD Board and there were no witnesses examined on either side. 5. The case of the petitioner before the Labour Court was that he worked for 480 days in two years and therefore, he should not have been removed except by following section 25F of the Industrial Disputes Act and inasmuch as such procedure has not been followed, he is entitled for reinstatement. a) The Labour Court took note of the admitted fact that the petitioner worked as temporary Watchman at Hosur between 30.4.1987 and 31.5.1990 and thereafter worked between 12.4.1991 and 5.7.1991 and between 1.9.1991 and 6.9.1991 as Night Watchman, and found that the petitioner was originally employed between 30.4.1987 and 31.5.1990 and thereafter, when he was not offered job, he did not choose to raise any industrial dispute. b) Even thereafter, for a short period he was temporarily employed and ultimately, the employment of the petitioner was between 3.10.1996 and 31.8.1997 at Krishnagiri Fluoride Godown and he was relieved on 1.9.1997 and the said fact is not denied by the petitioner as well as the first respondent. It is, considering the period between 3.10.1996 and 31.8.1997 which was his last employment, the Labour Court found that there was no possibility for the petitioner to work for 240 days so as to enable him to https://hcservices.ecourts.gov.in/hcservices/ contend that section 25F of the Industrial Disputes Act would be applicable. c) The Labour Court also found that in Ex.W1 appointment order issued to him on 17.4.1987, it has been clearly stated that it was a temporary service on daily wages basis and in such circumstances, when there are no charges against the petitioner, the Labour Court found that there is no necessity for conducting domestic enquiry and dismissed the industrial dispute. It is against the said award, the workman filed the present writ petition. 6. The main contention of the learned counsel for the petitioner is that as per the definition of the term, ‘continuous service’ under the Industrial Disputes Act, while calculating the said service, the service rendered by the petitioner not only between 3.9.1996 and 31.8.1997, but also the service rendered earlier between 30.4.1987 and 31.5.1990 and thereafter, upto 6.9.1991 has to be taken into account. The learned counsel would submit that in labour legislation, the construction should be liberal. He would rely upon the judgment of the Supreme Court in Divisional Manager, New India Assurance Company Ltd., vs. A.Sankaralingam [(2008) 10 SCC 698] and the judgment of Division Bench of this Court in Mamundiraj N. vs. Bharat Heavy Electricals Ltd., Trichy [1999 (1) LLJ 622]. 7. On the other hand, it is the contention of the learned counsel for the first respondent that as per the definition of ‘continuous service’ under section 25B of the Industrial Disputes Act,1947, the service rendered by the petitioner between 1987 and 1991 can never be taken into consideration, because after 1991, the relationship of employer-employee came to an end and there has been no continuity of service and admittedly the petitioner did not raise any dispute about the removal. Taking into account the service rendered by him between 3.10.1996 and 31.8.1997, he did not work for 240 days, as rightly found by the Labour Court and therefore, the petitioner is not entitled for any relief. 8. It is the admitted fact that only if the service rendered by the petitioner between 17.4.1987 and 6.9.1991 is taken into consideration, the petitioner will be entitled for claiming reinstatement with backwages because, by taking into consideration the service rendered by him between 3.10.1996 and 31.8.1997, the petitioner would not have completed 240 days service in one year since in the last part of his service he worked for less than one year. 9. The conduct of the petitioner clearly shows that as correctly found by the Labour Court, after 31.5.1990 he actually abandoned his service as temporary Watchman and thereafter, he worked as night Watchman for intermediary period and after https://hcservices.ecourts.gov.in/hcservices/ 6.9.1991, nearly for five years, he was not in employment and it is a total abandonment. On the facts and circumstances, he did not raise an industrial dispute earlier and it has to be necessarily held that the relationship of employer-employee came to an end. If at all the petitioner has got any right, the same can be only for the period between 3.10.1996 and 31.8.1997. 10. Section 25F of the Industrial Disputes Act,1947 which is as follows: " 25.F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the Official Gazette)." contemplates that if a person/workman is in continuous service for not less than one year, he is entitled for the benefit of compensation. 11. The term ‘continuous service’ is defined under section 25B of the Act, which is as follows: " [25-B. Definition of continuous service.- For the purpose 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 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 calender months preceeding 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 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.]" 12. Section 25B(1) of the Act makes it very clear that continuous service is possible only in the case of uninterrupted service except interruption is on the grounds stated therein viz., sickness, authorized leave, legal strike, lock out, etc. In all other cases, when there is interruption, one cannot construe the same as continuous service. On the facts of the present case, when https://hcservices.ecourts.gov.in/hcservices/ there was five years period of gap, it can never be treated as uninterrupted service at all to bring it within the meaning of the term ‘continuous service’. 13. On the facts of the present case, in the absence of any evidence produced by the petitioner to show that he has worked for 240 days in a continuous period of one year, as found by the Labour Court, there is absolutely no possibility to come to a conclusion that there has been any violation of section 25F of the Industrial Disputes Act. In fact, that has been decided on merit by the Labour Court considering the factual aspects which, in my view, does not require any interference since the award of the Labour Court can neither be treated as perverse, nor illegal. 14. The law is well settled that while testing the award of Labour Court, this Court, exercising jurisdiction under Article 226 of the Constitution, is not sitting in appeal to reappreciate the evidence. But the fact remains that there is absolutely no evidence on the side of the petitioner to substantiate his case and in such circumstances, there is absolutely nothing warranting this Court to interfere with the award of Labour Court. 15. The judgment in the Divisional Manager, New India Assurance Company Ltd., vs. A.Sankaralingam [(2008) 10 SCC 698], on which the reliance placed on by the learned counsel for the petitioner is not applicable to the facts of the case. There, while defining the term, ‘continuous service’ under section 25B of the Act, the Supreme Court found that there is no distinction between full time employee and part-time employee for the purpose of getting benefits under section 25F of the Act. In fact, the portion of the judgment of the Hon’ble Apex Court on which reliance was placed by the learned counsel for the petitioner which is as follows: " A bare perusal of the two definitions would reveal that their applicability is not limited to only full-time employees but all that is required is that the workman claiming continuous service must fulfill the specific conditions amongst others laid down in the two provisions so as to seek the shelter of Section 25-F." cannot be construed to mean that even in cases where between two periods of employment there is vast gap of more than five years, the same should be taken into consideration for the purpose of the term, ‘continuous service’. 16. Further, the judgment of Division Bench of this Court in Mamundiraj N. vs. Bharat Heavy Electricals Ltd., Trichy [1999 (1) LLJ 622], is also not applicable to the facts of the present case. That was a case, where a person employed as NMR from February, 1983 https://hcservices.ecourts.gov.in/hcservices/ with breaks here and there and thereafter, redesignated as casual employee in February, 1987, and as such, he rendered service of 142 days and thereafter, he rendered service for 223 days between 1.1.1988 and 31.12.1988 and then, 279 days from 1.1.1989 to 31.12.1989 and 234 days from 1.1.1990 to 28.9.1991 and in the year 1992, he continued to be in service and then, he claimed permanent status. It was, in those circumstances, considering the provisions of the Tamil Nadu Industrial Establishments (Conferment of Status of Workman) Act, 1981 the Division Bench has held as follows: " 22. The continuous service in the context of the scheme and the text of the Act does not postulate a continuous relationship of master and servant. Our considered view is what the statute accepts that the workmen should be in the employment of the employer for a period of 480 days in preceeding 24 calender months. To hold otherwise would not only alter the provisions of the Act as well as the object but would result in draconian rule of law resulting in perpetuating injustice. 23. The words, "cessation of work" has to be read in the context which it is used in the statute. In our considered view cessation of work would be stopping of work or passing of the work or even discontinuance of the work. As in the present case, the cessation of work has not been brought about by the workman nor it can be termed to be due to any fault on the part of the workman, rather it is other way around i.e., the respondent has brought about cessation of work for the specified period through unfair labour practice by articulating the terminology of the status of a casual worker as a nomenclature for a regular workman for denying the right to conferment of permanent status designed by the statute. 24. The deeming provisions of an employee putting uninterrupted service has been provided by inclusive definition, which means any interruption including non- employment or discharge of such workman or cessation of work without any fault on the part of the workman had to be counted for calculating the period of 480 days of continuous service. In our considered view, the sole of the section and the quint-essential provided by the State for conferment of status of permanent workmen are: (1)A continuous service for 480 days in preceding 24 calender months. (2)In order to determine the continuous service the perception or the ordinary rule of relationship of master and servant cannot be imported into the statutory provisions to frustrate the very object of the Act. https://hcservices.ecourts.gov.in/hcservices/ (3)Cessation of work, as envisaged by the act, does have a different colour and different from the discharge of employment or ceasing the relationship of employer and employee or subsistence of relationship of master and servant for conferment of permanent status the continuity of relationship of employer and employee or relationship of master and servant cannot be termed to be of paramount consideration especially when an end to the said relationship has been brought about by the employer for no fault of the workman. If we may hasten to add, especially in violation of the public policy provided by the 1981 Act." 17. The above said portion of the judgment was pressed into service by the learned counsel for the petitioner during the course of arguments, but, a reference to the same makes it very clear that permanent status can be granted in cases where an employee worked for more than 480 days in 24 calendar months and therefore, the finding of the Division Bench of this Court has no application to the facts of the present case at all. 18. In such view of the matter, looking at any angle, I am of the considered view that this Court has no reason to interfere with the award of the Labour Court since the same cannot be termed either as perverse or illegal. Accordingly, the writ petition fails and the same is dismissed. No costs. Kh Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Management Tamil Nadu Water Supply and Drainage Board Chennai 600 005. 2.The Presiding Officer Labour Court, Salem Salem District. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. P. Rajendran, Advocate SR No.82140 + 1 cc to Mrs. Sudharshanasundar, Advocate SR No.81761 KJI(CO) SR/25.11.2010 Order in W.P.No.8932 of 2003 https://hcservices.ecourts.gov.in/hcservices/