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Judgment
P. Jyothimani, J.—The writ petition is directed against the award passed by the Labour Court in No. 124 of 1999 dated17.7.2002, by which the Labour Court dismissed the claim made by the petitioner for reinstatement with backwages on the ground that the termination of the petitioner is notagainst law.
The petitioner was appointed as a daily ratedemployee in the Tamil Nadu Water Supply and Drainage Board(TWAD Board) viz., the first respondent on 17.4.1987. Itis stated that his appointment was through EmploymentExchange and he continued to work as a Watchman till6.9.1991, when his services were terminated. Afterrepresentations and based on subsequent settlement enteredby the Trade Union with the TWAD Board u/s 12(3) of the Industrial Disputes Act,1947 the petitioner wasstated to have been reinstated on 3.10.1996 and posted inKrishnagiri Division as Watchman and he was again stoppedfrom doing work with effect from 1.9.1997, and it is statedthat he was drawing a pay of Rs. 3,000/-at that time andthere was no termination order passed and no notice wasgiven before termination and no enquiry was conducted. Itwas, in those circumstances, the petitioner raised theabove said industrial dispute.
Before the Labour Court, the first respondentmanagement has stated that the petitioner was appointed on daily wages on 17.4.1987 and he was working in the SubDivision, Hosur between 30.4.1987 and 31.5.1990 and sincethe said godown was closed, he was removed on 1.6.1990 andafter one year he was again employed between 12.4.1991 and5.7.1991 and thereafter between 1.9.1991 and 6.9.1991 atDharmapuri as Watchman on daily wages. Thereafter, between3.10.1996 and 31.8.1997, he was employed temporarily atKrishnagiri Fluoride Godown and he was never made as apermanent employee and he was not paid salary of Rs. 3000/-per month. While it is admitted that there was asettlement u/s 12(3) of the Industrial DisputesAct, the said settlement is applicable only to those whoworked in the TWAD Board and who are not regularized as on1.8.1996, provided they have worked for 480 days in twoyears and the said settlement is not applicable to thepersons who have gone out of employment.
Before the Labour Court, on the side of thepetitioner, nine documents were marked as Exs.W1 to W9,while there was no documents filed by the TWAD Board andthere were no witnesses examined on either side.
The case of the petitioner before the Labour Courtwas that he worked for 480 days in two years and therefore, he should not have been removed except by following section 25F of the Industrial Disputes Act and inasmuch as suchprocedure has not been followed, he is entitled forreinstatement.
a) The Labour Court took note of the admittedfact that the petitioner worked as temporary Watchman atHosur between 30.4.1987 and 31.5.1990 and thereafter workedbetween 12.4.1991 and 5.7.1991 and between 1.9.1991 and6.9.1991 as Night Watchman, and found that the petitionerwas originally employed between 30.4.1987 and 31.5.1990 andthereafter, when he was not offered job, he did not chooseto raise any industrial dispute.
b) Even thereafter, for a short period he wastemporarily employed and ultimately, the employment of thepetitioner was between 3.10.1996 and 31.8.1997 atKrishnagiri Fluoride Godown and he was relieved on 1.9.1997and the said fact is not denied by the petitioner as wellas the first respondent. It is, considering the periodbetween 3.10.1996 and 31.8.1997 which was his lastemployment, the Labour Court found that there was nopossibility for the petitioner to work for 240 days so asto enable him to contend that Section 25F of the Industrial Disputes Act would be applicable.
c) The Labour Court also found that in Ex.W1 appointment order issued to him on 17.4.1987, it has beenclearly stated that it was a temporary service on dailywages basis and in such circumstances, when there are nocharges against the petitioner, the Labour Court found thatthere is no necessity for conducting domestic enquiry anddismissed the industrial dispute. It is against the saidaward, the workman filed the present writ petition.
The main contention of the learned Counsel for thepetitioner is that as per the definition of the term,''continuous service'' under the Industrial Disputes Act,while calculating the said service, the service rendered bythe petitioner not only between 3.9.1996 and 31.8.1997, butalso the service rendered earlier between 30.4.1987 and31.5.1990 and thereafter, upto 6.9.1991 has to be takeninto account. The learned Counsel would submit that inlabour legislation, the construction should be liberal. Hewould rely upon the judgment of the Supreme Court in Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam, and the judgment of Division Bench of this Court in Mamundiraj N. v. Bharat Heavy Electricals Ltd., Trichy 1999 (I) LLJ 622
On the other hand, it is the contention of the learned Counsel for the first respondent that as per thedefinition of ''continuous service'' u/s 25B of the Industrial Disputes Act,1947, the service rendered by thepetitioner between 1987 and 1991 can never be taken intoconsideration, because after 1991, the relationship ofemployer-employee came to an end and there has been nocontinuity of service and admittedly the petitioner did notraise any dispute about the removal. Taking into accountthe service rendered by him between 3.10.1996 and31.8.1997, he did not work for 240 days, as rightly foundby the Labour Court and therefore, the petitioner is notentitled for any relief.
It is the admitted fact that only if the servicerendered by the petitioner between 17.4.1987 and 6.9.1991is taken into consideration, the petitioner will beentitled for claiming reinstatement with backwages because,by taking into consideration the service rendered by himbetween 3.10.1996 and 31.8.1997, the petitioner would nothave completed 240 days service in one year since in thelast part of his service he worked for less than one year.
The conduct of the petitioner clearly shows that ascorrectly found by the Labour Court, after 31.5.1990 he actually abandoned his service as temporary Watchman andthereafter, he worked as night Watchman for intermediaryperiod and after 6.9.1991, nearly for five years, he wasnot in employment and it is a total abandonment. On thefacts and circumstances, he did not raise an industrialdispute earlier and it has to be necessarily held that therelationship of employer-employee came to an end. If atall the petitioner has got any right, the same can be onlyfor the period between 3.10.1996 and 31.8.1997.
Section 25F of the Industrial Disputes Act,1947 which is as follows:
25.F. Conditions precedent to retrenchment of workmen.
No workman employed in any industry who hasbeen in continuous service for not less than oneyear under an employer shall be retrenched by thatemployer until
(a) the workman has been given one month''snotice in writing indicating the reasons forretrenchment and the period of notice has expired,or the workman has been paid in lieu of suchnotice, wages for the period of the notice;
(b) the workman has been paid, at the time ofretrenchment, compensation which shall beequivalent to fifteen days'' average pay (for everycompleted year of continuous service) or any partthereof in excess of six months; and
(c) notice in the prescribed manner is servedon the appropriate Government (for such authorityas may be specified by the appropriate Governmentby notification in the Official Gazette).
contemplates that if a person/workman is in continuousservice for not less than one year, he is entitled for thebenefit of compensation.
The term ''continuous service'' is defined u/s 25B of the Act, which is as follows:
[25-B. Definition of continuous service.-For the purpose of this Chapter
(1)a workman shall be said to be in continuousservice for a period if he is for thatperiod, in uninterrupted service, includingservice which may be interrupted on accountof sickness or authorised leave or anaccident or a strike which is not illegal,or a lock-out or a cessation of work whichis not due to any fault on the part of theworkman;
(2)where a workman is not in continuousservice within the meaning of Clause (1) fora period of one year or six months, he shallbe deemed to be in continuous service underan employer
(a) for a period of one year, if theworkman, during a period of twelve calender monthspreceding 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 inthe case of a workman employedbelow ground in a mine; and
(ii)two hundred and forty days, inany other case;
(b) for a period of six months, if theworkman, during a period of six calender months preceding the date with reference to whichcalculation is to be made, has actually workedunder the employer for not less than
(i)ninety-five days, in the case ofworkman employed below ground in amine; and (ii)one hundred and twenty days, inany other case
Explanation.-For the purposes of Clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-
(i)he has been laid-off under anagreement or as permitted by standingorders made under the Industrial Employment (Standing Orders) Act 1946(20 of 1946), or under the Act orunder any other law applicable to theindustrial establishment;
(ii)he has been on leave with fullwages, earned in the previous years;
(iii)he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv)in the case of a female, she hasbeen on maternity leave; so, however,that the total period of suchmaternity leave does not exceed twelveweeks.]
Section 25B(1) of the Act makes it very clear thatcontinuous service is possible only in the case ofuninterrupted service except interruption is on the groundsstated therein viz., sickness, authorized leave, legalstrike, lock out, etc. In all other cases, when there isinterruption, one cannot construe the same as continuousservice. On the facts of the present case, when there wasfive years period of gap, it can never be treated asuninterrupted service at all to bring it within the meaningof the term ''continuous service''.
On the facts of the present case, in the absenceof any evidence produced by the petitioner to show that hehas worked for 240 days in a continuous period of one year,as found by the Labour Court, there is absolutely nopossibility to come to a conclusion that there has been anyviolation of Section 25F of the Industrial Disputes Act.
In fact, that has been decided on merit by the Labour Courtconsidering the factual aspects which, in my view, does notrequire any interference since the award of the LabourCourt can neither be treated as perverse, nor illegal.
The law is well settled that while testing theaward of Labour Court, this Court, exercising jurisdictionunder Article 226 of the Constitution, is not sitting inappeal to reappreciate the evidence. But the fact remainsthat there is absolutely no evidence on the side of thepetitioner to substantiate his case and in suchcircumstances, there is absolutely nothing warranting thisCourt to interfere with the award of Labour Court.
The judgment in the Divisional Manager, Div. Manager, New India Assurance Co. Ltd. Vs. A. Sankaralingam, , on which the reliance placed on by the learnedcounsel for the petitioner is not applicable to the factsof the case. There, while defining the term, ''continuousservice'' u/s 25B of the Act, the Supreme Courtfound that there is no distinction between full timeemployee and part-time employee for the purpose of gettingbenefits u/s 25F of the Act. In fact, theportion of the judgment of the Hon''ble Apex Court on which reliance was placed by the learned Counsel for the petitioner which is as follows:
A bare perusal of the two definitions wouldreveal that their applicability is not limited toonly full-time employees but all that is requiredis that the workman claiming continuous servicemust fulfill the specific conditions amongstothers laid down in the two provisions so as toseek the shelter of Section 25-F.
cannot be construed to mean that even in cases wherebetween two periods of employment there is vast gap of more than five years, the same should be taken intoconsideration for the purpose of the term, ''continuousservice''.
Further, the judgment of Division Bench of thisCourt in Mamundiraj N. v. Bharat Heavy Electricals Ltd.,Trichy 1999 (I) LLJ 622, is also not applicable to thefacts of the present case. That was a case, where a personemployed as NMR from February, 1983 with breaks here andthere and thereafter, redesignated as casual employee inFebruary, 1987, and as such, he rendered service of 142days and thereafter, he rendered service for 223 daysbetween 1.1.1988 and 31.12.1988 and then, 279 days from1.1.1989 to 31.12.1989 and 234 days from 1.1.1990 to 28.9.1991 and in the year 1992, he continued to be inservice and then, he claimed permanent status. It was, inthose circumstances, considering the provisions of theTamil Nadu Industrial Establishments (Conferment of Statusof Workman) Act, 1981 the Division Bench has held asfollows:
The continuous service in the context ofthe scheme and the text of the Act does notpostulate a continuous relationship of master andservant. Our considered view is what the statuteaccepts that the workmen should be in theemployment of the employer for a period of 480days in preceding 24 calender months. To holdotherwise would not only alter the provisions ofthe Act as well as the object but would result indraconian rule of law resulting in perpetuatinginjustice.
The words, "cessation of work" has to beread in the context which it is used in thestatute. In our considered view cessation of workwould be stopping of work or passing of the workor even discontinuance of the work. As in thepresent case, the cessation of work has not beenbrought about by the workman nor it can be termedto be due to any fault on the part of the workman,rather it is other way around i.e., the respondenthas brought about cessation of work for thespecified period through unfair labour practice byarticulating the terminology of the status of acasual worker as a nomenclature for a regular workman for denying the right to conferment of permanent status designed by the statute.
The deeming provisions of an employeeputting uninterrupted service has been provided byinclusive definition, which means any interruptionincluding non-employment or discharge of suchworkman or cessation of work without any fault onthe part of the workman had to be counted forcalculating the period of 480 days of continuousservice. In our considered view, the sole of thesection and the quint-essential provided by theState for conferment of status of permanentworkmen are:
(1)A continuous service for 480 days in preceding 24 calender months.
(2)In order to determine the continuousservice the perception or the ordinary ruleof relationship of master and servant cannotbe imported into the statutory provisions tofrustrate the very object of the Act.
(3)Cessation of work, as envisaged by the act,does have a different colour and differentfrom the discharge of employment or ceasingthe relationship of employer and employee orsubsistence of relationship of master andservant for conferment of permanent statusthe continuity of relationship of employerand employee or relationship of master andservant cannot be termed to be of paramountconsideration especially when an end to thesaid relationship has been brought about bythe employer for no fault of the workman.If we may hasten to add, especially inviolation of the public policy provided bythe 1981 Act.
The above said portion of the judgment was pressedinto service by the learned Counsel for the petitionerduring the course of arguments, but, a reference to thesame makes it very clear that permanent status can begranted in cases where an employee worked for more than 480days in 24 calendar months and therefore, the finding ofthe Division Bench of this Court has no application to thefacts of the present case at all.
In such view of the matter, looking at any angle,I am of the considered view that this Court has no reasonto interfere with the award of the Labour Court since the same cannot be termed either as perverse or illegal. Accordingly, the writ petition fails and the same is dismissed. No costs.