IN THE HIGH COURT OF JUDICATURE FOR RAJSTHAN AT JAIPUR BENCH, JAIPUR. S.B.Civil Writ Petition No.243/1995. Pramod Kumar Sharma Versus. Judge Labour Court Bharatpur & Anr. Date of Judgment: 12.2.2009. Hon'ble Mr.Justice Mohammad Rafiq. Miss.Dharmeshwari Sharma for Mr.P.K.Sharma for the petitioner. Mr.Zakir Hussain Addl.G.A. This writ petition has been filed by the petitioner challenging the award dated 28th October, 1994 passed by learned Labour Court, Bharatpur. The Labour Court by the aforesaid award answered the reference of an industrial dispute about the validity of removal of the petitioner by the respondents from their services vide order dated 1st May,1990 in the terms that it was valid. ..2.. Learned counsel for the petitioner has contended that even though the learned Labour Court by its finding held that the petitioner worked for 225 days with the respondents in a calender year the date of retrenchment, declined to take the weekly holidays and gazetted holidays into account and therefore, it illegally held that Section 25 F of the Industrial Disputes Act was not violated. The learned counsel for the petitioner has further contended that the Supreme Curt has clearly held that the wages of a workman is always arrived at for the whole month. In support of her argument, she relied upon a judgment in Workmen of American Express International Banking corporation Vs. Management of American Express International Banking corporation, reported in AIR 1996 S.C. 458 wherein it has been held that the ..3.. wages of a workman is always of the whole month, i.e., for 30 days or 31 days although for calculation purposes, it is divided by 26 days. Thus the element of weekly holidays is distributed equally in the actual working days. Therefore, all weekly holidays and paid holidays are included while making calculations for the purpose of counting the service days of a workman for the purposes of Section 25 B of the Industrial Disputes Act. According to learned counsel, the petitioner has already proved that he worked more than 240 days and there is no violation of Section 25 F of the Industrial Disputes Act. On the other hand, Mr.Zakir Hussain learned Addl. Government counsel has opposed the arguments advanced by the counsel for the petitioner and submitted that the learned Labour Court has rightly held that the ..4.. petitioner could not prove that he was paid even for the Sundays and gazetted holidays and until and unless it is proved as a matter of fact that th petitioner was actually paid wages also for Sundays and other holidays, such Sundays/holidays could not be added to the working period of the petitioner. In support of his arguments, he relied upon a judgment of this Court in Bajarang Lal Vs. Asstt.Engineer, P.W.D, Sikar, reported in 1992, R.L.R (Vol.1) Page 465. I have given my anxious consideration to the rival submissions and also perused the impugned award passed by the learned Labour Court. The learned Labour Court on the basis of the evidence produced by the parties, recorded a finding that the petitioner worked 225 days with effect from 1st August ..5.. 1989 to 30th April 1990. This period falls immediately before the date of his removal on 1st May 1990. The learned Labour Court, however, misread and misinterpreted the judgment of the Supreme Court in Workmen of American Express International Banking Corporation (Supra) by holding that the paid holidays can be counted in 240 days, only if the workman is paid or is entitled to be paid wages for such holidays days either under contract of employment or under some provision of law, otherwise he is not entitled to raise such a claim. Judgment of this Court in Bajarang Lal Vs. Asst. Enginieer P.W.D, Sikar (Supra) on which the reliance has been placed by the learned counsel for the respondent also held that nonworking weekly holidays can be counted for the purpose of Section 25 F of the Industrial Disputes Act only if the ..6.. workman is paid or is entitled to be paid either under the contract of employment or under some provisions of law. But this judgment also rendered by a coordinate Bench of this Court followed the judgment of Supreme Court in Workmen of American Express International Banking corporation Vs. Management of American Express International Banking corporation,(Supra) wherein it was held that paid holidays can be counted in 240 days, only if the workman is paid or is entitled to be paid wages for said paid holidays either under contract of employment or under some provisions of law. The Supreme Court in the mater of Workman American Express International Banking Corporation (Supra) in its judgment held as under:- “Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. ..7.. The qualification for relief under Section 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in S.25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is S.25 B(2) (a) (ii) which to he extent that it concerns us, provides that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer'. This expression, according to us, cannot mean those days only when he workman worked with hammer, sickle or pen, but must ..8.. necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to S.25-B (2) should be taken into account for the purpose of calculating the number of days on which the workman had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only classi- ficatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the express 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages and we see no impediment to so construe the expression- there is no reason ..9.. why the expression should be limited by the explanation. To give it any other meaning when what we have done would bring the object of S.25-F very close to frustration. It is not necessary to give examples of how S.25-F may be frustrated as they are too obvious to be stated”. It would, therefore, evident from judgments that the work actually done by the petitioner with the respondents cannot mean that the workmen worked with “sikel or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. The wages that are payable to the workman has to be comprehended with the wages determined under the Minimum Wages Act. The petitioner is justified in contending ..10.. that such minimum wages are notified for the whole of month and then divided by 26 days for calculation purpose. Relevant weekly days are equally distributed in the equal proportion and therefore, even the weekly holidays and public holidays are deemed to be such days when the workmen remained in the work of employer for which he has been paid under the implied and expressed contract of service or by compulsion of statute, standing orders etc. The wages under the minimum wages Act as enforced in the Standing Orders. The petitioner in the present case, has thus clearly proved that he has worked for 240 days. Had such holidays, Sundays and gazetted holiday been counted, he would have for such period worked for 31 more days, thus completing 240 days. The discussions made above would clearly show that the respondents failed to comply ..11.. with Section 25 F of the Industrial Dispute Act at the time of retrenchment of the petitioner and there was thus violation of Section 25 F. Retrenchment of the petitioner, therefore, held to be illegal. Coming to the question now what relief to be granted to the petitioner, I find that retrenchment in the present case was made on 1st May, 1990 and reference was made in the year 1992. Almost 19 years have gone by from the date of the workman was retrenched. He merely could complete one year when he was removed on 1st May 1990. His appointment was not made by any regular mode of recruitment or in regular pay-scale. Requiring the respondent now to reinstate the petitioner would not be just and proper. Ends of justice would be met if the respondents are required to pay Rs.100000/- (One Lakh) to the petitioner in lieu of reinstatement as ..12.. lumpsum compensation within a period of 3 months from the date of production of copy of this judgment before them. Consequently, this writ petition is allowed with no order as to costs. (Mohammad Rafiq)J k.