1.0 By way of present petition, the petitioner has challenged the judgment and award passed by the learned Presiding Officer, Labour Court, Palanpur wherein the References of the present petitioner came to be dismissed.
2.0 In this petition, according to the petitioner, he was in service of the respondent for more than a decade and to deprive the petitioner the benefits of the Resolution dated 17.10.1988, he was orally discontinued from services. The petitioner therefore approached the Labour Court, Palanpur, by way of references which came to be dismissed.
4.0 Learned advocate for the petitioner contended that the workmen were employed as per the requirement for few days in a month and was paid monthly salary calculated on daily wage basis and therefore the services of the workmen are required to be treated as continuous under section 25B of the Industrial Disputes Act. In support of his contention he placed reliance on the decision Moti Ceramics Industries versus Jivuben Rupabhai & others reported in 200(2) GLH 1558 wherein in para 7 it is held as under:
Section 25 sub clause (1) takes care of uninterrupted service to include the service which may be interrupted on account of sickness, or authorized leave or an accident or strike which has not been declared illegal or lock out or cessation of work which is not due to any fault on the part of the workman but that is an independent clause which neither governs nor controls the immediately succeeding clause namely sub clause (2) of section 25B of the ID Act. Sub clause (2) of section 25B of the ID Act governs the situations where the workman is not in continuous service within the meaning of section 25(1) of the Act. It is laid down in sub clause (a) (i) and (a) (ii) of section 25B that where a workman has not been in uninterrupted service for a period of one year or six months as provided in clause (1) of section 25B, he shall still be deemed to be in continuous service under the employer for a period of one year if during the period of 12 calender months preceding the date with reference to which the calculation is to be made, said workman has actually worked under that employer for not less than 240 days in any other case as per sub section
(a)(i). Thus, the conclusion falls that where a workman has not been in continuous service within the meaning of sub clause (1) for the entire period of one year or six months, he shall still be deemed to be in continuous service under the employer for a period of one year or six months as the case may be, if he, during the period of 12 calender months which is preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. There should have been subsisting contract of employment during the entire period as required under section 25 B (1) of the Act. It appears that the thrust of the above propositions is the existence of relationship of master and servant for the period during which the workman remained in continuous service as contemplated under section 25B(1) of the Act. The deeming provisions in section 25B sub clause (2) of the Act by fictionally treating interrupted service under certain conditions also as continuous service was introduced by the legislature apparently to mitigate the hardship of the workman who is made to actually serve under the employer intermittently but actually served or serviced with him for a period of not less than 240 days in the preceding 12 months from the date of termination of his service.
Sub section (1) and (2) of section 25B of the Act introduced a deeming fiction as to in what circumstances, the workman can be said to be in continuous service for the purpose of Chapter V-A. Sub section (1) provides a deeming fiction that where a workman is in service for certain period, he shall be deemed to be in continuous service for that period even if his service is interrupted on account of sickness or authorized leave or accident or a strike which is not declared illegal or lock out or cessation of work which is not due to any fault on the part of the workman. The situations such as sickness, authorized leave and accident, strike which is not declared illegal, lock out or cessation of work would ipso-facto interrupt the service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which could be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. Sub section (2) incorporates another deeming provision for entirely a different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub section (1) of section 25B of the Act for a period of one year or six months, he shall be deemed to be in continuous service under the employer for a period of one year or six months as the case may be, if the workman during the period of 12 calender months which is preceding the date with reference to which the calculation is to be made has actually worked under that employer for not less than 240 days. Sub section (2) specifically comprehends the situations where the workman is not in continuous service as per the deeming fiction indicated under sub clause (1) of section 25B for a period of one year or six months. In such cases, he is deemed to be in continuous service for a period of one year if the workman satisfies the conditions in sub clause (1) of sub section (2) of section 25B and, therefore, section 25B(1) of the Act says that the workman shall be said to be in continuous service for a period if he has, for that period, put in uninterrupted service including the service which may be interrupted by aforementioned causes. Under section 25B (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 for one year or if the workman during the period of 12 calender months preceding the date with reference to which the calculation is to be made has actually worked under the employer for not less than 240 days. Once the workman is in service of an employer, the employee continuous to be in service until he is dismiss or discharged from service. Where a workman takes part in illegal strike, the workman is in service of the employer and the fact that he has taken part in illegal strike will not put an end or cause break in his service. Said proposition has been considered by the High Court of Bombay in case of Jayram Sonu Shogale versus New India Rayon Mills Ltd. reported in 1958 (1) LLJ page 28 and it has been held that;
"taking part in illegal strike amounts to misconduct on the part of the employee and for the misconduct an employee invites an order of dismissal but unless the employee is dismissed from service for such misconduct, it is difficult to say how there could be any discontinuity of service so far as the employee is concerned. It would not be correct to contend that when a workman takes part in an illegal strike, continuity of his service comes to an end and he must be deemed to be re-employed after the period of illegal strike for the purpose of determining the quantum of retrenchment compensation. "
5.0 Learned advocate appearing for the petitioner further contended that the Labor Court failed to appreciate the mandatory provisions of publication of seniority list and following Section 25-G and 25-H of the I.D. Act. He submitted that the work was in progress and fresh employees were employed after termination of services of workmen and admittedly the petitioner was not given any chance for reemployment. and therefore, there is violation of Section H of the I.D. Act.
6.0 He further submitted that in any case of daily wagers are required to be given preference. He placed reliance on the decision of the Hon'ble Apex Court in case of Devinder Singh versus Municipal Council,Sanaur reported in (201106 SCC 584. In para 24 to 30 it is held as under:
"24.
We are also convinced that the reasons assigned by the High Court for setting aside the award of reinstatement are legally untenable. In the first place, it deserves to be noticed that the respondent had engaged the appellant in the backdrop of the ban imposed by the State Government on the filling up of the vacant posts. The respondent had started a water supply scheme and for ensuring timely, issue of the bills and collection of water charges, it needed the service of a clerk. However, on account of the restriction imposed by the State Government, regular recruitment was not possible. Therefore, the Resolution dated 27. 04. 1995 was passed for engaging the appellant on contract basis.
25. The relevant portions of the resolution are extracted below:
"MUNICIPAL COUNCUK, SANAPUR ( PATIALA) COPY OF RESOLUTION NO. 30 DATED 27.04.1995.
It has been informed by the office to the house that one vacancy of clerk in the office of Municipal Council, Sanaur is being vacant to the water supply branch. Due to ban imposed by the Punjab Government vacancy cannot be filed in at present. Municipal Council is operating two tubewells and is directly supplying water to the general public. At present Municipal Council is operating two tubewells and is directly supplying water to the general public. Municipal Council has given about 1500 water connections. In respect of issuance of water bills and their respective deposit there is need of one clerk. This vacancy can be filed in after receiving sanction from the Government. Therefore at present for the working of the office business as per the instruction of the Government, sanction may kindly be accorded for employing a person as clerk on contract basis on the consolidated salary of rupees one thousand per month. This matter was discussed seriously by the House because to provide water to the general public in the summer season is very essential. Therefore, to run smoothly the work of water supplying Shri Devinder Sing, son of Shri Hazura Singh of Mohalla Kania,Sanaur is hereby engaged for a period of six months on contract basis on a consolidated salary of rupees one thousand with effect from 2.5.1995. Resolution was unanimously passes.
Sd/ President Municipal Council, Sanaur, Patiala"
In furtherance of the aforesaid resolution, the respondent engaged the appellant, who was already in its employment, as a clerk for a period of six months on contract basis on a consolidated salary of Rs. 1000 per month. At the end of six months, the respondent passed another Resolution dated 30.11.1995 and again employed the appellant for a period of six months from 01.11.1995 to 20.04.1996. This exercise was repeated in 1996 and the appellant's term was extended for six month from 01.05.1996. However, his engagement was discontinued w.e.f. 30.09.1996 without giving any notice or pay in lieu thereof and compensation as per the requirement of clauses (a) and (b) of the Section 25F of the Act.
It is true that the engagement of the appellant was not preceded by an advertisement and consideration of the competing claims of other eligible persons but that exercise could not be undertaken by the respondent because of the ban imposed by the State Government. It is surprising that the Division Bench of the High Court did not notice this important facet of the employment of the appellant and decided the writ petition by assuming that his appointment/engagement was contrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that failure of the Director, Local Self Government, Punjab to convey his approval to the resolution of the respondent could not be made a ground for bringing an end to the engagement of the appellant and that too without complying with the mandate of Sections 25-F(a) and (b).
The other reason given by the High Court is equally untenable. The appellant could hardly be blamed for the delay, if any, in the adjudication of the dispute by the Labour Court or the writ petition filed by the respondent. The delay of four to five years in the adjudication of disputes by the Labour Court/Industrial Tribunal is a normal phenomena. If what the High Court has done is held to be justified, gross illegalities committed by the employer in terminating the services of workman will acquire legitimacy in majority of cases. Therefore, we have no hesitation to disapprove the approach adopted by the High Court in dealing with the appellant's case.
The plea of the respondent that the action taken by it is covered by Section 2(oo)(bb) was clearly misconceived and was rightly not entertained by the Labour Court because no material was produced by the respondent to show that he engagement of the appellant was discontinued by relying upon the terms and conditions of the employment.
In the result, the appeal is allowed. The impugned order is set aside and the award passed by the Labour Court for reinstatement of the appellant is restored. If the respondent shall reinstate the appellant within a period of four weeks from today, the appellant shall also be entitled to wages for the period between the date of award and the date of actual reinstatement. The respondent shall pay the arrears to the appellant within a period of three months from the date of receipt/production of the copy of this order.
7.0 Learned advocate for the petitioner further placed reliance on the decision of the Hon'ble Supreme Court in case of Harjinder Singh versus Punjab State Wareshousing Corporation reported in 2010(3) SCC 192.
In para 16 it is held as under:
16. It is true that in the writ petition filed by it, the Corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly / refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the Corporation to the statement of claim wherein it was admitted that the appellant was engaged as work-charge motor mate for construction work on 05.03.1986 and he worked in that capacity and also as work munshi from 03.10.1986 and as mentioned above, even after expiry of the period of three months, specified in the order dated 05.02.1987, the appellant continued to work till 05.07.1988 when the first notice of retrenchment was issued by the Managing Director of the Corporation. Therefore, it was not open for the Corporation to contend that the appellant had not completed 240 day's service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calender months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of "last come first go" without any tangible reasons."
8.0 Heard the learned Advocate for the petitioner at length. While considering the references, the learned Labour Court relied upon on the decision in case of Ranip Nagarpalika versus Babuji Gabhaji Thakore and others reported in 2008 (2) G.L.H 45, wherein in para in 15 it held as under:
"15.
It was held in all these cases that the burden of proof lies on the workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence apart from examining himself to prove the factum of being in employment of the employer."
8. 1 Thus it is well settled law that the burden of proof lies on the concerned workman to show that he had worked continuously for 240 days for the preceding one year and it is for the workman to adduce evidence and prove the factum of being in employment of the employer.
9.0 The learned Tribunal after considering the matter at length found that the petitioner was daily wagers and they were appointed by Executive Engineer. From the evidence on record the Laobur Court has found that the petitioner-workman had not worked continuously for a period of 240 days in the preceding 12 months from the date of termination. Thus, before the alleged termination the petitioner was never worked for a period of 240 days. In that view of the matter the provisions of Section 25(F) will not apply will not apply in the present case. The Tribunal has not committed error by rejecting the references.
10.0 As regards the other contention that he was daily wagers and he had a right to be considered is concerned, there is no dispute that as and when work was available, they were called,but subsequently when work was not available they were not called. Therefore the petitioner cannot make any case on the said ground.
11.0 It is also required to be noted that though the orders were passed in September 2009. The petition was filed in March 2010 and there were office objections which were not removed. Hence the matter was dismissed for non-prosecution. Even thereafter no prompt action was not taken and ultimately the matter could be circulated only the year 2012. In that view of the matter, the petition deserves to be dismissed only on the ground also.
12.0 On the facts and circumstances of the case I am of the view that provisions of section section 25(B) of the I.D. Act will not apply in the present case. I am in complete agreement with the reasoning adopted and findings arrived at by the Tribunal. The petitions therefore dismissed.
(K.S.JHAVERI, J.) ynvyas Top