State of Rajasthan vs Ram Kumar and Another

B.S. Chauhan, J.—This petition has been filed against the Labour Court Award dated 23.11.1993 passed in Labour case No. 17/1992, by which the Labour Court, Bikaner came to the conclusion that the termination of the services of respondent-workman vide order dated 9.10.1992 was invalid as the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short, "the Act") had not been complied with and it was directed to treat the petitioner in continuous service.

The facts of the case,... from the record, are that the respondent workman though shown in the record as having been appointed as a part-time employee, he was asked to do the work for eight hours and he was appointed on 5.12.1989 and continued till 9.10.1990 when his services were orally terminated. The State made a reference u/s 10 of the Act to the Labour Court for adjudication of the dispute: whether the termination of the services of the workman on 9.10.1990 was valid? The Labour Court, after considering the oral as well as documentary evidence produced by both the parties, came to the conclusion that the workman was a full-time employee and he had worked for 240 days in a calendar year and even if he was a part-time employee, he cannot be deprived of the protection u/s 25F of the Act and ultimately came to the conclusion that the retrenchment/termination of the services of the workman was illegal as the provision of Section 25F of the Act have not been complied with. Being aggrieved and dissatisfied by the said Award dated 23.11.1993, the State has preferred this petition.

Heard Shri S.B. Bhati-learned Counsel for the petitioner and Mr. K.R. Choudhary-learned Counsel for the respondent-workman.

Mr. Bhati could not succeed on any point and could not successfully assail the findings of facts recorded by the Labour Court as the labour Court had given a clear-cut arithmetic calculation and reached the conclusion that the workman had worked for more than 240 days in a calendar year and his services were terminated unceremoniously without compliance being made of the provisions of Section 25F of the Act though he did not fall in any of the exceptions Provided under the Act. However, Mr. Bhati has vehemently argued that the workman is not entitled for any relief whatsoever under the Act as he did not work for atleast one calendar year i.e., twelve months. Admittedly, the workman was employed on 5.12.1989 and his services were terminated on 9.10.1990. Thus, Shri Bhati has urged that the period of one year is to be calculated backward from the date of termination, i.e., 9.10.1990 and thus, the workman worked only for a period of ten months and four days and he was not entitled for any relief under the Act. In support of his submission, he has placed reliance upon a Division Bench judgment of this Court in: State of Rajasthan and Ors. v. Vinay Kumar and Ors. 1978 WLN (UC) 223 , wherein the Court has very heavily relied upon a judgment of the Supreme Court in: Sur Enamel and Stamping Works (P) Ltd. Vs. Their Workmen, In the said case, after interpreting the provisions of Section 25F and Section 25B alongwith other provisions of the Act, the Hon''ble Supreme Court came to the conclusion that to get any benefit under the provisions of the Act, it is mandatory that a workman must work atleast for one year continuously and if he has worked less than twelve calendar months even if he has worked for more than 240 days then he would not be entitled for any relief under the Act.

Mr. Choudhary has submitted that the judgment in: Sur Enamel and Stamping Works Ltd.''s case (supra) is of no application for the reason that just after the delivery of the said judgment, the Act was amended in the year 1964 and the provisions of Section 2(eee) had been deleted from the Act and the provisions of Section 25B had also been amended. He further submitted that subsequent to the amendment in 1964, the judgment in Sur Enamel''''s case (supra) was never followed by the Supreme Court though it was considered and was found inapplicable because of the amendment in the Act. In Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, , the Hon''ble Supreme Court considered it and held that after the deletion of the provisions of Section 2(eee) which defined "continuous service" as uninterrupted and the amendment of Section 25B it is not necessary to work for minimum twelve calendar months. The Court observed as under:

The changes brought about by the Act No. 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, being in such continuous service fora period of one year. It is enough that he has worked for 240 days in a period of twelve months; it is not necessary that he should have been in the service of the employer for one whole year.

The issue, also, came for consideration before the Hon''ble Supreme Court in: Mohan Lal Vs. Management of Bharat Electronics Ltd., wherein the Hon''ble Apex Court followed the law laid down in Surendra Kumar Verma case (supra) and held that the provisions provided 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 the service for a period of 240 days during the period of twelve calendar months counting backwards and just proceeding the relevant date being the date of retrenchment. This view has consistently and persistently been taken in all the subsequent judgments by the Hon''ble Apex Court, e.g., in: N. Robert Desuja v. Executive Engineer AIR 1982 SC 845: Hari Mohan Rastogi Vs. Labour Court and Another, ; Standard Motors Products of India Ltd. v. A. Partha Sarthy 1985 (4) SCC 89 ; and Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation,

Thus, the submission made by Mr. Bhati is devoid of any merit and cannot be sustained. Once the Court comes to the conclusion that the workman has worked for 240 days in a calendar year, as explained above, the failure to comply with the requirement of Section 25F, which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative and such a termination would not bring a cession of service of the workman and he continues to be in service. (Vide Management of Karnataka State Road Transport Corporation, Bangalore Vs. M. Boraiah and Another, and S. Govindaraju Vs. Karnataka S.R.T.C. and Another,

In view of the above, I find no force in the petition and the same is accordingly dismissed. The interim order, if any, stands discharged. The parties shall bear their own costs.