Bhura Ram vs S.D.O. Telephone and Telegraphs and Others

B.J. Shethna, J.—Shri H.S. Sidhu, learned counsel for the petitioner workman, submitted that the Tribunal while passing the impugned award against the petitioner workman, committed an error in holding that the Telecom Department is not an industry. This view was taken by Tribunal in view of previous judgment of Hon''ble Supreme Court which was later on reversed by the Supreme Court in the case of General Manager, Telecom Vs. A. Srinivasa Rao and Others, therefore, on this ground the order passed by Tribunal was required to be set aside. However, the Tribunal has not restrained itself after holding that the Telecom Department is not an industry, it proceeded to decide the case on merits also and it was held by the Tribunal that the workman failed to prove that during one calendar year he had completed 240 working days. However, Shri Sidhu, learned counsel for the petitioner vehemently submitted that the Labour Court committed a grave error in coming to the conclusion that the workman had not completed 240 working days in a calendar year. He submitted that the workman was in service on daily wage basis from 1975 and he worked till 1988 and during these years he had completed 240 days in a calendar year. Once it is found that he had completed 240 days in one calendar year then it is not necessary that in the last year before his termination he should have completed 240 days in that calendar year. In support of his submission he has relied on a judgment of learned single Judge of this Court in State of Rajasthan and Ors. v. Smt. Kanku and Anr., SB Civil Writ Petition No. 2229/1999 decided on September 6, 1999.

In case of Smt. Kanku (supra) the Labour Court, after considering the evidence led before it, came to the conclusion that the workman had worked from 1985 to 1992 and worked for more than 240 days from December, 1999 to November, 1991, therefore, it held that her termination was in violation of Section 25 of the Industrial Disputes Act. Accordingly the order of termination was set aside and she was reinstated in service but without back wages. That was challenged before this Court by way of writ petition by the State of Rajasthan. Having regard to the facts of that case the learned single Judge of this Court refused to interfere with the finding of fact recorded by Labour Court whereby it was held that the workman had worked for more than 240 days in one calendar year.

Coming to the facts of the present case. It is clear that the learned Tribunal on appreciation of evidence clearly found that the workman has completely failed to prove that he ever worked for 240 days in any calendar year this being a finding of fact cannot be lightly interfered by this Court in its extraordinary jurisdiction under Article 226.

Mr. Sidhu submitted that for three consecutive years the petitioner has produced medical certificates showing that he was suffering from ''arthritis'' and during the period he remained on leave, that period shall be counted for the purpose of 240 days in one calendar year.

This submission has also no substance. Because, first of all the workman was not a regular employee. He was on daily wage basis. The very concept of daily wage is that if the work was there then only workman is to be employed for doing work otherwise not. This type of medical leave cannot be included in 240 days. Furthermore such a person who is constantly suffering from a disease like ''arthritis'' continuously remaining absent from duty for as many as three years can never be reinstated in service.

In view of above discussion this petition fails and dismissed.