Punjab-Haryana High Court
Ram Gopal vs The Presiding Officer on 11 October, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
L.P.A. No. 1669 of 2011
DATE OF DECISION : 11.10.2012
Ram Gopal
.... APPELLANT
Versus
The Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad
and another
.... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE INDERJIT SINGH
Present : Ms. Sangita Dhanda, Advocate,
for the appellant.
Mr. Deepak Jindal, DAG, Haryana,
for respondents No.2 and 3.
***
SATISH KUMAR MITTAL, J.
1. The workman has filed the instant Letters Patent Appeal against the order dated 28.7.2009 passed by the learned Single Judge, whereby Civil Writ Petition No. 9248 of 2000, filed by the appellant challenging the award dated 23.3.1999 (Annexure P-1), passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad, has been dismissed.
2. Vide award dated 23.3.1999, while rejecting the claim of the workman, the Labour Court came to the conclusion that since the workman had failed to establish that he had continuously worked for 240 days in a calendar year, therefore, termination of his services could not be said to be LPA No. 1669 of 2011 -2- in violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act'). After taking into consideration the evidence led by the parties, the Labour Court further arrived at the conclusion that the workman had worked only for 222 days in the twelve calendar months prior to termination of his services. The contention of the workman that while calculating 240 days in a calendar year, Sundays and other holidays were to be counted, was rejected on the ground that the workman was working on daily wages and he was not being paid for Sundays and other holidays, therefore, in view of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, AIR 1986 SC 458, the Sundays and other unpaid holidays are not to be taken into consideration, while counting the actual number of days.
3. Before the learned Single Judge, the workman raised an issue with regard to the counting of Sundays and other holidays for the purpose of reckoning the actual working days, while relying upon the subsequent decision of the Hon'ble Supreme Court in Management of Standard Motor Products of India Limited vs. Parthasarathy and another, (1985) 4 SCC 78, wherein it was held that while dealing with the expression `actually worked', it should be taken to include the Sundays and other paid holidays. On the other hand, the management relied upon the decision of the Hon'ble Supreme Court in Bank of India and another vs. Tarun Kr. Biswan and LPA No. 1669 of 2011 -3- others, (2007) 7 SCC 114, wherein it was held that the workman was not being paid any salary for Sundays and other holidays, therefore, Sundays and other holidays shall not be counted towards the actual service of 240 days in a calendar year. The learned Single Judge rejected the contention of the workman and affirmed the award of the Labour Court, while making the following observations :
"I am of the view, the payment of salary or otherwise on a Sunday does not make a difference. It is the nature of employment of a contract under which the person is working that is the determinant of his entitlement. A daily rated worker whose engagement is on daily basis and who is paid salary for the days which the person is actually working, cannot be said to be working even on holidays for the purpose of reckoning of 240 days. It is not really a case where there is any complaint that a holiday was not given by the workman every week. The ILO convention that requires that the worker shall be entitled to 24 hours holiday ought not to be understood as also extending a principle that wherever a reckoning of continuous service is to be made, holidays have also to be counted. It should necessarily depend on the nature of engagement of service.
In the manner that the term 'continuous service' is attempted to be interpreted, there is no scope for a finding that the workman had completed 240 days of service. The plea complaining of termination of services contrary to Section 25-F of the Industrial Disputes Act therefore, does not merit acceptance."
4. Feeling aggrieved against the order of the learned Single Judge, LPA No. 1669 of 2011 -4- the workman has filed the instant appeal.
5. We have heard learned counsel for the parties and gone through the impugned order passed by the learned Single Judge, as well as the award passed by the Labour Court.
6. The issue raised before us is as to whether Sundays and other holidays, for which the wages were not paid to the workman, who was working on daily wages, should have been included while calculating the requisite period of 240 actual working days to give him benefit under the provision of Section 25-F of the Act.
7. Two Division Benches of this Court took divergent views on this issue. In Sunder Dass vs. Punjab State Electricity Board, Patiala and others, 2005 (II) LLJ 128, a Division Bench of this Court took the view that for a workman (a daily wager), who was not paid for Sundays and other holidays either under an express or implied contract of service or by compulsion of a Statute, standing orders etc., those days could not be counted in 240 actual working days, to get benefit under Section 25-F of the Act. Contrary to this, two other Division Benches of this Court in Executive Engineer, Public Health Division, Narnaul vs. Rajbir Singh and another (CWP No. 6183 of 2004, decided on August 24, 2005) and in Panipat Cooperative Sugar Mills Ltd., Panipat vs. Presiding Officer and another (LPA No. 578 of 2009, decided on July 31, 2009), while making reference to the provision of Rule 23 of the Minimum Wages Rules, 1950, observed LPA No. 1669 of 2011 -5- that the weekly rest days shall be taken as a paid holiday and it must be counted in the period of 240 actual working days, to give benefit of the provisions of Section 25-F of the Act.
8. In view of the aforesaid divergent views, expressed by Division Benches of this Court, the matter was referred to the Full Bench to consider the following issue :
"Whether a daily wager who may be entitled to a rest day is entitled to reckon such rest day also as a day of service to be relevant for computation of 240 days of continuous service, irrespective of whether such rest day shall be a paid holiday or not?"
The majority view of the Full Bench of this Court in the case of Executive Engineer, Public Health Division No.1, Panipat vs. Sanjay Rana and another (CWP No. 15278 of 2000, decided on December 03, 2010) was that the view expressed by the Division Bench of this Court in Executive Engineer, Public Health Division, Narnaul vs. Rajbir Singh and another (supra) is not the correct law, and it was held that a daily wager may be entitled to a rest day but unless and until he is paid for the said day, it cannot be counted towards computation of 240 days of continuous service to get benefit under the provisions of Section 25-F of the Act.
9. In the present case, undisputedly, the appellant was working on daily wages and for Sundays and other holidays, he was not being paid salary. Therefore, in view of the aforesaid decision of the Full Bench of this LPA No. 1669 of 2011 -6- Court, the appellant has no case on merits. Since as per the finding of fact recorded by the Labour Court, the appellant had worked only for 222 days in a calendar year, therefore, the management, before retrenching his services, was not required to comply with the provision of Section 25-F of the Act.
10. In view of the aforesaid factual and legal position, we are not inclined to interfere in the impugned order passed by the learned Single Judge.
11. Dismissed.
Sd/-
( SATISH KUMAR MITTAL ) JUDGE Sd/-
October 11, 2012 ( INDERJIT SINGH ) ndj JUDGE