Case: MOHD. ALI Vs. THE STATE OF HIMACHAL PRADESH

The present appeal has been filed against the impugned judgment and order dated 18.11.2014 passed by the Division Bench of the High Court of Himachal Pradesh at Shimla in LPA No. 209 of 2011 whereby the High Court dismissed the appeal filed by the appellant herein against the judgment and order dated 07.07.2010 passed by learned single Judge in CWP No. 3761 of 2009e appellant herein was engaged as Casual Labourer in the Agriculture Seed Multiplication Farm Bhagni, Dist. Sirmor, Himachal Pradesh on Muster roll basis during the year 1980. He worked as such till the year 1991 under different work schemes i.e., Rabi and Kharif and completed 240 days in a calendar year during the years 1980, 1981, 1982 and 1986 to 1989.S.No. Year Number of days workedIt is further the case of the respondents that thereafter he abandoned the work without informing the Incharge Seed Multiplication Farm Bhagani and never returned to work.(c) In the year 2005, the appellant herein made a representation to the State Government for making Reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). In pursuance of the Representation made by the appellant herein, the State Government made a Reference being No. 9 of 2005 to the Industrial(d) Learned Presiding Judge, gave the Award dated23.04.2009 in favour of the appellant herein and directed thee to reinstate the appellant in service with seniority and continuity while denying the back wages.e filed a writ petition being CWP No. 3761 of 2009 before the High Court at Shimla. Learned single Judge of the High Court, by judgment and order dated 07.07.2010, allowed the said writ petition and set aside the Award dated 23.04.2009.(f) Being aggrieved by the order passed by learned single Judge, the appellant preferred a Letters Patent Appeal before the High Court. The Division Bench of the High Couort, vide judgment and order dated 18.11.2014 dismissed the Letters Patent Appeal while upholding the decision of learned single Judge.(g) Aggrieved by the judgment and order passed by the Division Bench of the High Court, the appellant has preferred this appeal by way of special leave before this Court.

Reasoning: Further, it is an admitted position that though the appellant worked as such till 1991 under different work/schemes i.e. Rabi and Kharif and completed 240 days in a calendar year only during the years 1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in the year 1990 and 19.5 days in the immediate preceding year of his dismissal which is below the required 240 days of working in the period of 12 calendar months preceding the date of dismissal, therefore, he is not entitled to take the benefits of the provisions of Section 25F of the Act and Division Bench of the High Court was right in dismissing the appeal of the present appellantIn Surendra Kumar Verma and Others vs. Central Government Industrialr Court, New Delhi and Another (1980) 4 SCC 443 , ae Bench of this Court has very categorically dealt with the theory of 240 days as contemplated under Section 25B of the Act. The relevant paragraphs of the judgment are reproduced hereinbelow:8….The provision appears to be plain enough. Sectionrequires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present Section) steps in and 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 not be. That appears to be the plain meaning without gloss from any sourcewas not always so worded. Prior to Act 36 of 1964, it read as follows:For the purposes of Sections, 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 year of continuous service in the industry. Explanation.—…. The difference between old Sectionis patent. The clausewhere a workman is not in continuous service … for a period of one year) so significantly begins, was equally significantly absent from old SectionOf the same degree of significance was the circumstance that prior to Act 36 of 1964 the expressionwas separately defined by Section 2(eee) as follows:(eee) continuous service means 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, ort or a cessation of work which is not due to any fault on the part of the workman;Section 2(eee) was omitted by the same Act 36 of 1964 which recast Sectionas it read prior to Act 36 of 1964, in the light of the then existing Section 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 SectionThat precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Workmen. The court said:On the plain terms of the Sectiononly 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 Section 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 at 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 has been defined in SectionUnder 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 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 SectionBefore 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 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 it becomes unnecessary to examine whether the actual days of work numbered 240 days or moreAct 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S.) now begins with the clausewhere 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 than 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. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellantsFurther, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225 , in paragraphs 10 and 12 held as under:10. It was, however, urged that Sectionis not attracted in this case for an entirely different reason. Mr Markendeya contended that before Sectionn (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning ofn (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days.n (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated inn (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions ine (a) of clause (2). The conditions are that commencing (sic) the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter. It is not necessary for the purposes of clause (2)(a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in SectionOn a pure grammatical construction the contention that even for invoking clause (2) of Sectionthe workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render clause (2) otiose. The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it……In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period.