Bhavnagar Area Development Authority vs Presiding Officer & 1 Other(S)

A.S. Supehia, J

In the present writ petition, the petitioner has, inter alia, prayed for the following reliefs.

“10. (A) Quashing and setting aside the Award dated 23.07.2010, passed by the Presiding Officer in Reference (L.C.B) No.141/2005;

(B) Declare that the respondent is neither entitled to 25% back wages and reinstatement nor to Rs.500/- towards costs as awarded by the

Presiding Officer in Reference (L.C.B.) No.141/2005;

(C) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to Stay the implementation, operation

and execution of the Award 23.07.2010, passed by the Presiding Officer in Reference (L.C.B.) No.141/2005;

(D) Grant an ex parte ad interim relief in terms of prayer (C) above may kindly be granted;

(E) Pass such other further order or orders as may be deemed just and proper in the facts and circumstances of the present case;

(G) Award costs.â€​

At the outset, learned advocate Mr.Panchal, appearing for the petitioner has submitted that the impugned award is an ex-parte award, since no one

remained present on behalf of the respondent-workman. He has submitted that the respondent-workman in fact has voluntarily abandoned the job

since, no permission was granted by the State Government for regularisation in service. He has submitted that the petitioner also passed a Resolution

dated 12.04.2001 recommending to regularise the respondent-workman, subject to approval of the State Government. He has submitted that there was

various communications entered by the petitioner before the State authorities for granting approval of regularising of the respondent workman,

however no such approval was received. He has further submitted that the State Government did not respond to their correspondence and ultimately

the respondent-workman voluntarily left the job. He has further submitted that the respondent-workman had not completed 240 days in the preceding

year and the termination has been set aside for violation of provisions of Section 25F of the Industrial Disputes Act, 1947 (I.D. Act) which is illegal.

Thus, he has submitted that the award may be set aside.

Per contra, learned advocate Mr.T.R.Mishra, appearing for the respondent-workman has submitted that the award does not require any

interference. Learned advocate Mr.Mishra has seriously objected to the submission that the aforesaid award is ex-parte, since the respondent-

workman has filed the written statement, which was examined by the Labour Court. He has submitted that the respondent-workman had worked for

240 days in a year and an evidence with regard to his appointment such as identity card etc., was produced before the labour Court, hence the award

may not be set aside.

I have heard learned advocates appearing for the respective parties.

On perusal of the award of the Labour Court, it appears that the respondent was engaged as a part-time worker and thereafter, his case was

recommended for regularization, however, the State Government did not take any decision. The case of the petitioner before the Labour Court and

this court is that the respondent-workman voluntarily left the service on 07.12.2004. The perusal of the award reveals that the same is bereft of any

findings with regard to the respondent-workman having completed 240 days in a year preceding his termination. The provisions of Section 25F of the

I.D. Act can get only attracted, if it is proved that the respondent workman had completed 240 days in the preceding year. Reference in this regard is

required to be made to the decision of the Supreme Court in the case of Mohd. Ali Vs. State of Himachal Pradesh and Ors., (2018) 15 SCC 641, in

which, the Apex Court has observed thus:-

“14. It is a well known fact that the Industrial Disputes Act is a welfare legislation. The intention behind the enactment of this Act was to

protect the employees from arbitrary retrenchments. For this reason only, in a case of retrenchment of an employee who has worked for a

year or more,Section 25F provides a safeguard in the form of giving one month’s prior notice indicating the reasons for retrenchment

to the employee and also provides for wages for the period of notice. Section 25B of the Act provides that when a person can be said to

have worked for one year and the very reading of the said provisions makes it clear that if a person has worked for a period of 240 days in

the last preceding year, he is deemed to have worked for a year. The theory of 240 days for continuous service is that a workman is deemed

to be in continuous service for a period of one year, if he, during the period of twelve calendar months preceding the date of retrenchment

has actually worked under the employer for not less than 240 days.

In Surendra Kumar Verma and Others vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another (1980) 4

SCC 443, a three-Judge 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. Section 25-F 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 Section 25 -B(2) 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 source.

Now, Section 25-B was not always so worded. Prior to Act 36 of 1964, it read as follows:

“For the purposes of Sections 25-C and 25-F, 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.â€"….

The difference between old Section 25-B and present Section 25-B is patent. The clause “where a workman is not in continuous service

… for a period of one year†with which present Section 25-B(2)so significantly begins, was equally significantly absent from old Section

25-B. Of the same degree of significance was the circumstance that prior to Act 36 of 1964 the expression “continuous service†was

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, or lock-out 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 Section 25-B. Section 25-B as 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 year’s completed service so as to attract the provisions of Section 25-F. That 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 Section 25-F only 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 a lock-

out 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 Section 25-B.

Under 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 Section 25 -

B. Before 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 more.†Act 36 of 1964 has drastically changed the

position. Section 2(eee) has been repealed and S. 25-B(2)now begins with the clause “where a workman is not in continuous service . . .

for a period of one yearâ€. 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 appellants.â€​

Further, 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 Section 25 -F is not attracted in this case for an entirely different reason. Mr Markendeya contended

that before Section 25-F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied.

According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section

25-F……

Sub-section (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 of sub-section (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. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming

fiction indicated in sub-section (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 in sub-clause (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 V-A. 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 Section 25-F. On a pure grammatical construction the contention that even for invoking clause (2) of Section 25-B the 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……â€​

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.

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 appellant.

Thus, the Supreme Court has held that for attracting the vigorous of Section 25F of the I.D. Act, the respondent-workman must show that he had

worked for a period of 240 days preceding one year before his termination and he has worked continuously as per the provisions of Section 25B of the

I.D. Act. It is the case of the respondent-workman that he had filed an affidavit stating that he has worked for 240 days. The fact of having worked

for 240 days in preceding year cannot be satisfied by merely filing an affidavit.

The Supreme Court in the case of R.M.Yellati Vs. Assistant Executive Engineer, (2006) 1 SCC 106, has held thus:-

“17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the

proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated

judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for

240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the

workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no

letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only

call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if

any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case.

The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in

the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above

judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will

not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic

principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded

by the labour court unless they are perverse. This exercise will depend upon facts of each case.“

The Supreme Court has held that mere affidavits or self securing statement made by the workman will not discharge him from the burden placed by

the law on him to prove that he had worked for 240 days in a given year. Thus, the Labour Court has set aside the alleged oral termination of the

respondent-workman and directed the petitioner to reinstate with 25% of the back wages without examining the fact of completion of 240 days by the

respondent- workman.

Accordingly, the writ petition is allowed. The impugned award dated 23.07.2010 passed by the Labour Court, Bhavnagar in Reference (L.C.B.)

No.141 of 2005 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.