RAJASTHAN TOURISM DEVELOPMENT

CORPORATION LTD. AND ANR.

INTEJAM ALI ZAFRI

JULY 13, 2006

[DR. AR. LAKSHMANAN AND LOKESHWAR SINGH PANT A, JJ.]

Labour Laws:

Industrial Disputes Act, 1947; Ss. 25(B), 25(F) and 33C(2):

Casual worker-Retrenchment-Labour Court passing an award- Affirmed by the Single Judge and also by Division Bench of the High Court-

On appeal, Held: Since the worker in question worked only for 227 days in about 4 years period and not for 240 days in a calendar year, provision of D Section 2 5(F) not attracted-Hence, the award passed by the Labour Court quashed-However, payment in lieu of award, if mqde, shall not be recovered from the workman.

The question which arose for determination before this Court in this appeal was as to whether in respect of a workman who claims to have completed E 240 days of continuous service but allegedly completed only 227 days of scn•icc and whose services were terminated, provisions of Section 25(F) of the Industrial Disputes Act would be attracted.

Allowing the appeal, the Court

HELD: 1. The Labour Court has held that the workman has worked for 240 days. However, the finding recorded by the Labour Court is factually incorrect. The employer has placed material before this Court and also before

the Labour Court that the workman has worked only for 227 days in about four years. Sine~ the respondent has not worked for 240 days in a calendar year, the provisions of Section 25F of the Industrial Disputes Act are not G attracted. The Single Judge as also the Division Bench of the High Court have committed a mistake oflaw in ordering reinstatement with back wages etc. This apart, the order passed by the Division Bench of the High Court is also non-speaking. It is the settled proposition of law that when the initial

533 H

SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A appointment itself is void then the provisions of Section 25F of the Industrial Disputes Act are not applicable while terminating the services of the workman. Hence, the award passed by the Labour Court is quashed and set aside. The proceedings before the Labour Court under Section 33C(2) has become infructuous.1534-E; 535-B-C-D-E-FI

2. It is clarified that if any payment is made to the respondent during the pendency of appeal in this Court, the same shall not be recovered.

1535-GJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6654 of2005.

C From the Judgment and Order dated 3.6.2004 of the High Court of

Rajasthan, Jaipur Bench, Jaipur, in D.B. Civil Appeal (Writ) No. 369/2004 in S.B.W.P. No. 921012002.

Shrish Kumar Misra and Jayant Mohan for the Appellants.

Indra Makwana for the Respondent.

The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, .i. Heard Mr. Shrish Kr. Mishra, learned counsel for the appellants and Mr. Indra Makwana, learned counsel for the respondent-workman.

We have perused the records and the order impugned in this appeal.

The Labour Court has held that the appellant has worked for 240 days. In our opinion, the finding recorded by the Labour Court is factually incorrect. The appellant has placed material before us and also before the Labour Court that the workman has worked only for 227 days in about four years as per the following description as contained in para 5 of the reply to the statement of F claim:-

"December, 1987 4 days January, 1988 27 days February, 1988 25 days March, 1988 27 days G March, 1990 23 days April, 1990 23 days May, 1990 20 days July, 1990 18 days August, I 990 18 days

H December, 199 I 14 days

RAJASTHAN TOURISM DEVE. CORPN. L m. v. INTEJAM ALI ZAFRI [LAKSHMANAN, l] 535

January, 1992 February, 1992

Total Days

24 days 04 days

227 days"

The respondent has not worked for 240 days in one calendar year which

is the condition precedent for attracting provisions of Section 25F of the Industrial Disputes Act, 1947. This apart, the workman was a causal house B assistant who never worked for 240 days continuously in one calendar year.

As per the provisions of Section 25(B) of the Industrial Disputes Act, there should be working of 240 days in one calendar year. Hence, the provisions of Section 25F of the Industrial Disputes Act are not attracted in the instant case for the reason that the respondent worked only for 227 days in about C 4 years period from the date of his initial appointment i.e. 28.12. 1987 to the date of termination i.e. 07 .02.1992. In our opinion, the learned Single Judge as also the learned Judges of the Division Bench of the High Court have committed a mistake of law in ordering reinstatement with back wages etc.

This apart, the order passed by the Division Bench is also non-speaking.

As already noticed, it is the settled proposition of law that when the initial appointment itself is void then the provisions of Section 25F of the Industrial Disputes Act are not applicable while terminating the services of

the workman. The respondent-workman has also not placed before the Labour Court the relevant documents and not even summoned the records before the Labour Court. It is seen from the records that neither the Labour Court called E for the records concerned nor the respondent-workman moved an application before the Labour Court for summoning the records. The respondent-workman led no cogent and convincing evidence before the Labour Court. Accordingly, the award passed by the Labour Court deserves to be quashed and set aside.

For the aforesaid reasons, we set aside the order of reinstatement and back wages passed by the courts below. The appeal stands allowed accordingly.

No costs.

We make it clear that if any payment is made to the respondent during

the pendency of appeal in this Court, the same shall not be recovered.

In view of the order now passed, the proceedings before the Labour Court under Section 33C(2) has become infructuous.

S.K.S.

Appeal allowed.