Case: Employers In Relation To Digwadih Colliery Vs. Their Workmen

in these circumstances, be illegal. But the Employers pointed out that S. 25F required two conditions: (a) continuous service, and (b) service for not less than one year, and contended that these conditions were not fulfilled as the service was not continuous but broken. They relied on the definition of "continuous service" in S. 2 (eee) which was introduced by the same amending Act:"2(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a look-out or a cessation of work which is not due to any fault on the part of the workman". The workmen, on the other hand, relied upon the provisions of S. 25B which reads:"25B. Definition of one year of continuous service. For the purpose of Ss. 25C and 25F, a workman who during a period of 12 calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry. Explanation - In computing the number of days on which a workman has actually worked in any industry, the days on which - (a) he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid off being taken into account for the purposes of this clause. (b) he has been on leave with full wages, earned in the previous year; and (c) in the case of a female, she has been on maternity leave, so however, that the total period of such maternity leave shall not exceed twelve weeks. shall be included:" 5. The definitions in S. 2 of the Act do not apply if there is anything repugnant in the subject or context and the question is whether the definition of "continuous service" can at all apply in considering S. 25F when what is meant by the expression "one year of continuous service" in S. 25F is, by S. 25B, specially stated. If S. 25B had not been enacted the contention of the Employers would have been unanswerable for the words of S. 25F would then have plainly meant that the service should be for a period of 12 months without interruptions other than those stated in S. 2 (eee) itself. But S. 25B says that for the purpose of S. 25F a workman who, in a period of twelve calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of continuous service. Service for 240 days in a period of twelve calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. Therefore, though S. 25F speaks of continuous service for not less than one year under the employer, both conditions are fulfilled if the workman has actually worked for 240 days during a period of twelve calendar months. It is not necessary to read the definition of continuous service into S. 25B because the fiction converts service of 240 days in a period of twelve calendar months into continuous service for one complete year. 6. Mr. B. Sen drew our attention to the Industrial Disputes (Amendment) Act, 1964 which was passed last December. By S. 2 (iii) of the amending Act of 1964, cl. (eee) of the second section of the principal Act was omitted and by S. 13, for S. 25B in the principal Act the following was substituted:"25B. 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, i uninterrupted service, including service which may be interrupted on account of sickness or authorised leave on an accident or a strike which is not legal, 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 * * * *, 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 cases; * * * * * * * *" The Explanation to S. 25B is the same, mutatis mutandis as before. Mr. Sen contended that the change in the law brought out his contention. We do not agree. The amended S. 25B only consolidates the previous Ss. 25B and 2 (eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the new provisions is not different. In fact the amendment of S. 25F of the principal Act by substituting in cl. (b) the words "for every completed year of continuous service" for the words "for every completed year of service" now removes a discordance between the unamended S. 25B and the unamended cl. (b) of S. 25F. Neither before these several changes nor after these is uninterrupted service necessary if the total service is 240 days in a period of twelve calendar months. The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made. The last amendment now removes a vagueness which existed in the unamended S.25B.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. Mr. B. Sen drew our attention to the Industrial Disputes (Amendment) Act, 1964 which was passed last December. By S. 2 (iii) of the amending Act of 1964, cl. (eee) of the second section of the principal Act was omitted and by S. 13, for S. 25B in the principal Act the following was substituted:"25B. 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, i uninterrupted service, including service which may be interrupted on account of sickness or authorised leave on an accident or a strike which is not legal, 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 * * * *, 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 cases;* * * *The Explanation to S. 25B is the same, mutatis mutandis as before. Mr. Sen contended that the change in the law brought out his contention. We do not agree. The amended S. 25B only consolidates the previous Ss. 25B and 2 (eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the new provisions is not different. In fact the amendment of S. 25F of the principal Act by substituting in cl. (b) the words "for every completed year of continuous service" for the words "for every completed year of service" now removes a discordance between the unamended S. 25B and the unamended cl. (b) of S. 25F. Neither before these several changes nor after these is uninterrupted service necessary if the total service is 240 days in a period of twelve calendar months. The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made. The last amendment now removes a vagueness which existed in the unamended S.25B.