Case: Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal, New Delhi

are fulfilled. Section 25Bs marginal title is "Definition of continuous service". To the extent that it is relevant S. 25B (2) as it now reads is as follow;"Where a workman is not in continuous service ....... 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) ..............Explanation .........."The provision appears to be plain enough. Section 25F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present S. 25B (2) steps in an says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need hot be, That appears to be the plain meaning without gloss from any source.9. Now, S.25B was not always so worded. Prior to Act 26 of 1964, it read as follows :"For the purpose of Ss. 25C and 25F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one years continuous service in the industry.Explanation ..........."The difference between old 25-B and present 25-B is patent. The clause "where a workman is not in continuous service ..... for a period of one year" with which the present S. 25B(2) so significantly begins, was equally significantly absent from old S. 25B. Of the same degree of significance was the circumstances that prior to Act 36 of 1964 the expression "continuous service" was separately defined by S. 2 (eee) as follows :"(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 lock-out or a cessation of work which is not due to any fault on the part of the workman;".Section2(eee) was omitted by the same Act 36 of 1964 in the which recast S. 25B. Section25B as it read prior to Act 36 of 1964, in the light of the then existing S. 2(eee) certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one years completed service so as to attract the provisions of S. 25F. That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Their Workman, [1963-II L.L.J. 367]. The Court said (at p. 370) :"On the plain terms of the S. 25F only a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. Continuous service is defined in S. 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely 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. What is meant by one year of continuous service had been defined in S. 25B. Under this section a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than 240 days shall be deemed to have completed one year of continuous service in the industry ........ The position, therefore, is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of S. 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months, and, next that during those 12 calendar months he had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months is becomes unnecessary to examine whether the actual days of work numbered 240 days or more ..........".Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25B(2) now begins with the clause where a workman is not in continuous service ...... for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. We hold that Usha Kumari and Madhubala are in the same position as the other appellants.

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

Explanation:
1[ds]7. In the cases before us we are unable to see any special impediment in the way of awarding the relief. The Labour Court appears to have thought that the award of the relief of reinstatement with full back wages would put these workmen on a par with those who had qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter. First, they can never be no par since reinstatement would not qualify them for permanent absorption. They would continue to be temporary, liable to retrenched. Second, there is not a shred of evidence to suggest that their reinstatement would be a cause for dissatisfaction toprovision appears to be plain enough. Section 25F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present S. 25B (2) steps in an says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need hot be, That appears to be the plain meaning without gloss from any36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25B(2) now begins with the clause where a workman is not in continuous service ...... for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. We hold that Usha Kumari and Madhubala are in the same position as the other2. I entirely agree with my learned brother Chinnappa Reddy in the order proposed by him.13. The appeals raise strictly limited questions. The appeals by Usha Kumari and Madhubala involve the question whether they can be regarded as being in continuous service for a period of one year within the meaning of S. 25B(2), Industrial Disputes Act, 1947, and if so, to what relief would they be entitled. The remaining appeals require the Court to examine whether the appellants should have been awarded reinstatement with back wages instead of the curtailed relief granted by the IndustrialCourt. That is the entire scope of these appeals. No question arise before us whether the termination of the service of the appellants amount to "retrenchment" within the meaning of S.2(oo) of the Act. Theof India has apparently accepted the finding of the IndustrialCourt that the termination amounts to retrenchment. It has not preferred any appeal. I mention this only because I should not be taken to have agreed with the interpretation of S. 2(oo) rendered in Santosh Gupta v. State Bank of Patiala,L.L.J. 72].14. Proceeding on the footing mentioned above my learned brought Chinnappa Reddy has, I say with respect, rightly concluded that on the facts and circumstances before us the appellants should be reinstated with full back wages subject to the proviso that the salary on reinstatement will be the salary drawn by the respective appellants on the date of their retrenchment, qualified by the impact of any revision of scale meanwhile, and subject to the further provision that the period intervening between the date of retrenchment and the date of reinstatement will be omitted from account in the determination of the seniority of these appellants among temporary employees. Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement will full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief. It has not been shown to us on behalf of the respondent why the ordinary rule should not be applied.15. On the other question decided by my learned brother I have no hesitation in agreeing that having regard to the simultaneous amendments introduced inthe Industrial Disputes Act, 1947, by Act No. 36 of 1964the deletion of S. 2(eee) and the substitution of the present S. 25B for the original sectionit is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of S. 25B. It is sufficient for the purposes of S. 25B(2)(a)(ii) that he has actually worked for not less than 240 days. The law declared by this Court in Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen,L.L.J. 367], does not apply to situations governed by the subsequently substituted S.25B of the Act.