Bajrang Lal vs Asst. Engineer, PWD and Others

G.S. Singhvi, J.—The petitioner has claimed that he was appointed as Beldar in January, 1987. He has completed 240 days of working during last 12 calendar months. He was appointed in the P. W.D. and at the time of filing of the writ petition he was working at Sikar- Salasar Road. The petitioner has enclosed Schedule ''A'' in support of his assertion that he had worked for 240 days. The work on which the petitioner was engaged comes under the jurisdiction of Executive Engineer. P.W.D., Division Sikar. There are four sub-divisions under him. The work under those sub-divisions has not been completed. Notwithstanding that, the petitioner has been retrenched by an oral order dated July 16, 1988. No notice was given to the petitioner nor any compensation has been paid to him. The rule of ''last come first go'' has not been followed. The petitioner has stated that termination of his service is liable to be declared as void because of violation of Section 25F read with Section 25B of the Industrial Disputes Act, 1947. There has also been violation of the provisions contained in Rules 77 and 78 of the Rajasthan Industrial Disputes Rules, ] 1958. Action of the respondents also amounts to violation of the rights guaranteed to the petitioner by Articles 21, 39(a) and 41 of the Constitution of India. The petitioner has been deprived of the only source of livelihood. His fundamental right of equality has been infringed. On that premise, the petitioner has made a prayer that the respondents be directed not to retrench him and to recognize the petitioner as a semi-permanent employee under the Industrial: Disputes Act. A further prayer has been made for quashing of the verbal order of retrenchment.

A reply to the writ petition has been filed by the respondents in which it has been asserted that the petitioner was engaged on daily wages on muster roll basis as Beldar. He was so engaged on purely temporary basis with effect from January 1, 1987. The respondents have denied the statement of the petitioner regarding his having completed 240 days during last 12 calendar months. It has also been stated that the petitioner has himself stopped coming to work with effect from August 1, 1988. He was not engaged in the P.W.D. He mostly worked under: the schemes of the Goverment relating to famine relief works and thereafter for few days in the Maintenance Department. Regarding the period of working of the petitioner, a statement showing the actual days of working has been placed on record as Annexure R-1 and on that basis it has been stated that the petitioner has worked for 215 1/2 days in Famine Relief works and 9 days in Maintenance Department. There were 38 Sundays and one paid holiday. The working of the petitioner during Famine Relief cannot be treated as an employment under the Government. It has also been stated that the provisions of the Industrial Disputes Act are not applicable in view of the Government notification dated: May 21, 1988. It has then been stated that each sub-division is a separate and independent unit for the purposes of Rule 4 of the Rajasthan P.W.D.(B&R), including Gardens, Irrigation, Water Works and Ayurvedic Departments Work Charge Employees Service Rules, 1964.

Reiterating that the petitioner has himself stopped coming to work from August 1, 1988, the respondents have asserted that it cannot be treated as a case of retrenchment. Regarding the alleged date of retrenchment, the respondents have stated that the petitioner had worked between July 16, 1988 to July 30, 1988 and, therefore, it cannot be said that the petitioner was retrenched with effect from July 16, 1988. The respondents have denied that the petitioner''s fundamental or legal rights have been infringed on account of alleged termination of his service. The respondents have also averred that the petitioner has failed to avail a very effective remedy available to him under the Industrial Disputes Act, 1947.

Shri Joshi, learned Counsel for petitioner, has argued that the total period of working of the petitioner was 239 1/2 days during 12 calendar months counted from the date of termination of his service. Thus, it must be taken that the petitioner has worked for 240 days in 12 calendar months. Before effecting retrenchment of the service of the petitioner, neither any notice nor pay in lieu thereof nor the retrenchment compensation were either paid or offered to the petitioner. Thus, there has been a clear violation of the provisions of the Industrial Disputes Act. Shri Joshi argued that the termination of the service of the petitioner amounts to breach of the fundamental right of the petitioner guaranteed by Article 21 of the Constitution of India. In support of his submission that even Sundays and holidays should be counted as the period during which the petitioner has worked, Shri Joshi invited my attention to the decision of the Supreme Court in Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, Babulal Sharma v. University of Ajmer 1989 (1) RLR 624 Dinesh Kumar Behera Vs. Orissa Sponge Iron Ltd. and Another, He also referred to the decision of this Court in Devendra Salolia 1990 (1) RLR 734. Shri Ashok Parihar, learned Addl.Govt. Advocate, argued that disputed questions of fact are involved in this case and, therefore, the High Court will not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India particularly when an effective alternative remedy is available to the petitioner for vindication of his alleged rights under the Act of 1947. Shri Parihar then argued that the pleadings in the petition are absolutely laconic and the petitioner 3 has made erroneous and contradictory averments in the petition. Shri Parihar then submitted that the petitioner has himself stopped coming to the work and, therefore, it is not a case of retrenchment at all but a case of voluntary abandonment of service. Shri Parihar then urged that the provisions of Industrial Disputes Act are not applicable in view of the notification issued by the Government. Lastly Shri Parihar argued that it is a case which is clearly covered by Section 2(oo)(bb) of the 1947 Act.

Before I deal with the contention of Shri Joshi in respect of the violation of Section 25F, I consider it proper to observe that the petition filed by the petitioner contains several contradictory pleadings. This petition was filed on Marcy 13, 1989. In para 4 of the petition the petitioner has stated that he is working at Sikar-Salasar Road. In para 9 he has stated that he has: been retrenched by verbal order dated July 16, 1988 without issuance of any notice. It is not possible to understand as to how the petitioner can be treated as working at Sikar-Salasar Road as on March 13, 1989 when he had allegedly: been retrenched by verbal order dated July 16, 1988. The petitioner has made a prayer that the respondents be directed not to retrench him from service and to recognize him as a semi-permanent workman under the Industrial Disputes Act and at the same time has prayed that the verbal order of retrenchment issued by respondent No. 1 be quashed. No provision of law has been cited under which the petitioner can claim declaration as a semi-permanent workman. Learned counsel could not point any provision of the Industrial Disputes Act which entitled him to claim such status. If a prayer has been made for quashing of the order of retrenchment it is not possible to comprehend as to how there could be prayer for restraining the respondents from retrenching the petitioner. Admittedly, there has been a lack of care in the filing of the petition. Rather, the petition has been prepared casually.

Now coming to the contention of Shri Joshi it may be observed that before a person can claim that termination of his service by oral or written order be declared as unlawful and void on the ground of violation of Section 25F, he has to show by specific pleadings that he is a workman u/s 2(s) of the 1947 Act; that he has been in continuous service for a period of one year; that no notice or pay in lieu thereof and retrenchment compensation have been given to him as required by Section 25F(a) and (b) of the Act of 1947. The term "continuous service" has been defined in Section 25B of 1947 Act. Section 25B(1) & (2) read as under:

"25-B : Definition of continuous service - For purposes of this Chapter -

(1) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted 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;

(2) Where a workman is not in continuous service within the meaning of Clause (1) 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 pre-1 ceding 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 workman employed below ground in mine; and

(ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months proceeding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-

(i) ninety-five days, in the case of a workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case."

A perusal of the provision quoted here-inabove show that a workman shall be deemed to be in continuous service if he has actually worked under the employer, for a particular period. The crucial phrase is ''actually worked under the employer''. Can it be said that even though the employee does not perform his duties during Sundays and holidays, he should be deemed to have worked under the employer? The dictionary meaning of the word ''actual'' is "Existing in act or fact, real" and the word "actually" is "In act or fact, really" (The Shorter Oxford Dictionary). This question arose for consideration of the Supreme Court in Workmen of American Express International Banking Corporation''s case (supra). Their Lordships of the Supreme Court examined the scope of Sections 25B and 25F in the context of Sections 16, 17 and 18 of the Delhi Shops and Establishments Act, 1954. Those provisions of Delhi Shops and Establishments Act postulated compulsory rest in every week and also the benefit of closed days to the workman and also that no deduction shall be made from the wages of the employees on account of closed days. After observing that Section 25F of the ''1957 Act'' is plainly intended to give relief to retrenched workmen, the Court held that the expression ''actually worked under the employer'' cannot mean those days only when the workman worked with hammer, sickle or pen, but necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of serv- -ice or by compulsion of statute, standing orders, etc.

Their Lordships further observed that there was no reason to give a restricted meaning to the expression ''actually worked under the employer'' .

In Murari Lal v. R.S.R.T.C.D.B. Civil Writ Petition No. 1070/88 decided on December 7, 1988 a Division Bench of this Court held that Sundays and holidays can be included within the expression ''actually worked under the employer''. That was a case in which the Standing Orders of the Rajasthan State Transport Corporation contained provisions which were similar to those of Delhi Shops and Establishments Act, 1954.

In Babulal Sharma v. University of Ajmer (supra), a learned Single Judge after placing reliance on the decisions of the Supreme Court in Workmen of American Express International Banking Corporation''s case held that since the University is a ''State'' under Article 12 of the Constitution, the persons working in the University regularly can claim benefit, just like other employees of gazetted holidays and Sundays and a person cannot be compelled to work throughout the week. He must get atleast Sunday as rest day and this will also apply to the temporary worker who has worked in the University and the temporary worker in the University is also entitled to the benefit of holidays.

In Chaggan Lal v. Panchayat Samiti and Anr. (supra), the workman had claimed that he had worked continuously between April 27, 1988 to January 10, 1989. He has produced a certificate of Vikas Adhikari which contained a mention that the employee had worked regularly between April 27, 1988 to January 10, 1989. Placing reliance on the decision of the Supreme Court in Workmen of American Express''s case (supra), a learned Single Judge of this Court held that Sundays and other paid holidays have to be taken into account for the purpose of reckoning the total number of days for which the workman is said to have actually worked.

In University of Ajmer v. Munna Lal Sain and Anr. D.B. Civil Special Appeal No. 41/89 decided on October 18, 1989, a Division Bench of this Court while reversing the decision of a Single Judge held that learned Single Judge was not correct in counting the period during which the employee was not paid. After making a reference to the decision of the Supreme Court in Workman of American Express''s case, the Division Bench observed as under:

"In view of the said decision it must be held that the day for which the workman has been paid wages has to be counted as the period he actually worked under the employer even though the workman has not actually worked on that day on account of the day being a holiday or Sunday or other non-working day. In view of the said decision only the days for which the petitioners were paid their wages could be counted for calculating the period of 240 days required for invoking the protection of Section 25F of the Act and the days for which the petitioners were not paid any wages could not be included for calculating said period.

Shri Sharma, the learned counsel for the petitioners, has, however, urged that the said decision of the Supreme Court only refers to Sundays and that in the present case the petitioners had actually worked on Sundays and they have been paid for Sundays and that they were given a holiday on another day in the week and, therefore, the said decision would not be applicable. In our view, it does not make any difference as to whether the non-working is a Sunday or any other day in the week. What is to be seen is as to whether the workman has been paid wages for the non-working day. If he has been paid wages for the non-working day then it has to be included, but if he has not been paid for the non-working day then it has to be excluded."

It must, therefore, be held that for the purpose of Section 25B a workman can claim that he has actually worked in the eye of law, even though he may not have worked with hammer, sickle or pen, only if he is paid or is entitled tc be paid wages either under a contract of employment or under some provision of law. Otherwise he is not entitled to raise such a claim.

From the above quoted decisions it is also clear that while their Lordships of the Supreme Court had dealt with a case where the workmen were entitled to the benefit of closed days on account of the statutory provision contained in Delhi Shops and Establishment Act, 1954, in none of the two cases, namely Babulal Sharma''s case and Chhagan Lal''s case, on which learned counsel for the petitioner has placed reliance, there is any finding that there was an express or implied contract of service or there was a provision contained in the statute or standing order etc. which entitled the workman the receive wages even though he may not have actually worked. There is nothing in the two judgments to show that on Sundays or other holidays the workmen were entitled to be paid wages by the employer. In both the cases the learned Single Judges proceeded on an assumption that Sundays or other gazetted holidays are to be treated as a period during which the employee is entitled to receive wages irrespective of the fact as to whether he has physically worked or not. The two decisions cited by the learned counsel for the petitioner cannot be taken as laying down a proposition that the employee will be deemed to have actually worked on Sundays or holidays irrespective of the fact that there is a contract of service, express or implied, or statute which entitled the employee to claim wages for the said period should be counted. With great respect those two decisions are based on an incorrect reading of the judgment of the Supreme Court in Workmen of American Express International Banking Corporation''s case. The decision of the Division Bench dated October 18, 1989 in the appeal of University of Ajmer correctly brings out the ratio of the decision of the Supreme Court and in the face of the decision of the Division Bench, I am neither inclined nor I find any justification to accept the contention of the learned counsel for the petitioner advanced on the strength of the two Single Bench decisions of this Court.

In the present case, pleadings of the petitioner are that he has worked for 239 1/2 days during previous 12 calendar months. The respondents have come forward with the plea that the petitioner was not working in an industry but was engaged in the Famine Relief work for 215 1/2 days. He was engaged for 9 days in maintenance work. There were 38 Sundays during the whole engagement of the petitioner and one paid holiday. The petitioner on his part has not asserted that he has not worked on Sundays or other holidays or has been paid for it or under law the respondents are under an obligation to pay him for the Sundays and the holidays. The petitioner has completely failed to show that he is entitled to be paid wages for Sundays or any other holiday either under a contract of employment or under some provision of law. It is, therefore, not possible to accept the plea of the learned counsel for the petitioner that the petitioner should be treated as having discharged his duties on Sundays and other holidays and he should accordingly be treated to have worked for 240 days in a period of 12 months. In this view of the matter, Sundays have to be excluded from the total period of 240 days during which there had been a relationship of master and servant between the petitioner and the respondents. On such exclusion it is clear that the petitioner has not worked for 240 days in 12 calendar months.

Thus the petitioner is not entitled to any relief for quashing of the order of retrenchment of his service on the ground of violation of Section 25F of 1947 Act.

There is another reason as to why interference is not called for in the so called retrenchment of the service of the petitioner. While the petitioner has asserted that he has been removed from service on July 16, 1988 the respondents have specifically pleaded that the petitioner did work upto July 31, 1988 and voluntarily stopped coming for work with effect from August 1, 1988. The question as to whether there has at all been a retrenchment of the petitioner from the service and if so with effect from what date, is a seriously disputed question of fact which cannot be determined in this writ petition particularly when the petitioner has not chosen to file an affidavit to rebut the plea of the respondents that he has voluntarily stopped coming for the work. There is no ground to disbelieve the plea of the respondents.

In the conclusion, I do not find any merit in this writ petition. The same is hereby dismissed. The petitioner shall pay cost of Rs. 500/-to the Respondents.