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

The facts of the four appeals before us (except the cases of Usha Kumari and Madhu Bala, two out of the seven appellants in Civil Appeal No. 633 of 1980) are almost identical with the facts in Santosh Gupta v. State Bank of Patiala, decided by this Court on April 29, 1980, [1980-II L.L.J. 72]. Not unnaturally the appellants claim that they should be given the same reliefs as were given to the workman in that case, but which have been denied to them by the Labour Court in the instant cases. The Labour Court found, as a fact, that except in the cases of three workmen, S. C. Goyal, Usha Kumari and Madhu Bala, the termination of the service of the remaining appellants workmen was in violation of the provisions of S.25F ofthe Industrial Disputes Act, 1947 and therefore, invalid and inoperative. But, as the termination of their services was a consequence of their failure to pass the test prescribed for permanent absorption by passing the test, the Labour Court refused to give the workmen the relief of reinstatement in service with full back wages, but, instead, directed payment of compensation of six months salary to each of the workmen, in addition to the retrenchment compensation. The appellants claim that they should be awarded the relief of reinstatement with full back wages as was done in the case of Santosh Gupta v. State Bank of Patiala, [1980-II L.L.J. 72], and other earlier cases decided by this Court. On the other hand, the learned counsel for the employer contended that non compliance with the requirements of S.25F of the Industrial Disputes Act did not render the termination of the service of a workman ab inito void but only made it invalid and inoperative and that the Court, when setting aside the termination of the service of a workman on the ground of failure to comply with the provisions of S. 25F, had full discretion not to direct reinstatement with full back wages, but, instead, to direct the payment of suitable compensation. The learned counsel invited our attention to cases where such discretion had been exercised and to other cases arising under Ss.33 and 33A of the Industrial Disputes Act where it was held that discharge of workmen during the pendency of proceedings, without the previous permission in writing of the authority before which the proceeding was pending was not ab initio void and that the Labour Court or the Tribunal was not bound to direct reinstatement merely because it was found that there was a violation of S. 33.

Reasoning: 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.