Delhi High Court
Union Of India (Uoi) And Ors. vs Chet Ram And Ors., Jai Parkash And Ors., ... on 30 September, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. These two writ petitions involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.
2. The short question which arises for consideration is as to whether Sundays and national holidays are to be counted towards 'actual service'.
3. The respondents herein were employed by eth petitioners as 'Badli' workers. They filed an application before the learned Tribunal in terms of Section 19 of the Administrative Tribunal Act, 1985 for a direction that they be transferred to the regular establishment of the second petitioner on the ground that they had completed 240 days in a period of 12 months in terms of Certified Standing Order. The stand of the petitioner before the learned Tribunal as also before us is that the respondents had not completed the actual period of 240 days. According to the respondents, Badli workers are employed only when the regular staff was on regular leave, was absent to avoid any disruption of work.
4. The Certified Standing Order of the employees of the Delhi Milk Scheme came into force on 15th July 1962. Workers have been classified as casual, badli and apprentice. The expression 'badli' has been defined thus:
"'Badli' means a worker who is employed for the purpose of working in place of regular employees who are temporarily absent.
Provided that a badli worker who has actually worked for not less than 240 days in any period of 12 months shall to transferred to regular establishment governed by the Fundamental and Supplementary Rules."
5. Relying on or on the basis of its earlier judgment in DMS Employees v. Union of India and Ors., OA 1059/87, it was directed:
"9. After going through the judgment in OA Nos. 1551/2000 and 1552/2000, referred to above, we are convinced that the present cases are fully covered by the judgment in those OAs. Accordingly we dispose of the present OAs with the following directions:
(1) The respondents while counting the period of actual working days of the applicants (Badli workers) shall also add the number of weekly offs and three National holidays in the number of actual working days of the applicants if not already counted and out of those workers who are found to have completed 240 days then in accordance with the provisions of para 4(iii) of the standing Orders. the said Badli worker shall be transferred to the regular establishment; and
(b) Applicants will not be entitled to any back wages."
6. Mr. Sameer Aggarwal, learned counsel appearing on behalf of the petitioner would submit that the learned Tribunal committed an error in so far as it failed to take into consideration that the word 'actual service' must be interpreted in the strict sense and thus those employees who have not completed actual service of 240 days cannot be transferred to the regular establishment of the second petitioner.
7. Mr. S.M. Garg, learned counsel appearing on behalf of the respondents, on the other hand, would submit that the interpretation of a similar provision fell for consideration before the Apex Court in H.D. Singh v. Reserve Bank of India and Ors., and thus there is no merit in these writ petitions.
8. Delhi Milk Scheme is an essential service scheme. It runs 24 hours entailing employment of the Badli workers on all weekly off days and holidays. The weekly off days and holidays are required to be treated as working days in the establishment of the petitioners.
9. There cannot be any doubt or dispute that if a person works for six days a week continuously, he would be entitled to a week's salary despite the fact that he may not be working on weekly holidays. Similarly, taking work from a workman on the national holidays can only be permitted in exceptional situations in essential services where he gets a compensatory leave and/or compensation on monetary terms.
10. In H.D. Singh v. Reserve Bank of India and Ors. (supra), the Apex Court held that Sundays/weekly offs and 17 holidays are to be added to the number of working days for the purpose of completing 240 days. In that case. also, the concerned employee had actually worked for less than 240 days but it was held that Sundays/weekly offs and 17 days are to be reckoned for that purpose. For the purpose of computation of period under Section 25B and 25F, Sundays and holidays are thus also required to be taken into account.
11. In this connection, we may notice the provisions of Section 25B and 25F of the Industrial Disputes Act which are as follows:
"25B. Definition of continuous service. --For the purposes of this Chapter,--
(1) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or as 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;
(2) Where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer--
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer or not less than--
(i) One hundred and ninety days in the case of a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--
(i) ninety-five days, in the case of workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any 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 an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years;
(iii) he has been absent due to temporary disablement caused by accident arising out of an in the course of his employment;
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks."
25F. Conditions precedent to retrenchment of workmen. -- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenchment by that employer until--
(a) The workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service of any part thereof in excess of six months; and
(c) Notice in the prescribed manner is served on the appropriate Government for such authority as may be specified by the appropriate Government by notification in the Official Gazette."
12. The Apex Court in H.D. Singh v. Reserve Bank of India and Ors. , (supra) observed as under:
"10. That takes us to the question whether the appellant had qualified himself to sustain his claim to the benefits of Section 25-F. The appellant, as we will presently see, has given the number of days on which he worked, in his claim statement. The first respondent bank arranged posting Tikka Mazdoors, like the appellant, in such a manner that they were denied the benefits of the Industrial Disputes Act. Since the first respondent-bank disputed the fact that the appellant had worked for sufficient number of days to entitle him to claim remedies under the Act, we think it necessary to refer to the facts as disclosed in the records. The advocate who appeared for the appellant before the Tribunal, Shri. R.N. Srivastava, has filed an affidavit in this Court stating that he had filed written arguments before the Tribunal explaining the mistake committed by the bank in the computation made by it of the number of working days of the appellant. Rom this affidavit, it is seen that the first respondent-bank ut forward a case that the attendance register for the month of July 1976 had been destroyed and that Sunday and other holidays were not taken not account in computing the number of days that the appellant worked. We have also a supplementary affidavit filed by the appellant himself which throws further light about the number of days that he worked. In this affidavit, it is seen that he worked for 4 days in 1974, 154 days from January 1975 to December 1975 and 105 days from January 1976 to July 1976. The appellant was denied work from July 1976. His affidavit shows that he had worked for 202 days from July 1975 to July 1976. According to him if we add 52 Sundays and 17 holidays, the total number of days on which he worked comes to 271 days. The appellant charged the bank with having tampered with the records. To contradict the appellant's case, the first respondent-bank did not produce its records. The appellant wanted the relevant records to be filed but they were not produced. Grounds 18 to 20 of the special leave petition make mention of this plea of the appellant. These grounds are met by the first respondent bank in their counter affidavit filed in this Court by stating that "when the matter was before the Industrial Tribunal, the registers in question were filed in another case before the Industrial Tribunal-cum-Labour Court and produced in that Court. However, I submit that now the attendance register has been destroyed but the payment registers are available with respondent- bank as proof of the number of days on which the appellant worked". In the absence of any evidence to the contrary, we have necessarily to draw the inference that the appellant's case that he had worked for more than 240 days from July 1975 to July 1976, is true.
12. Not being satisfied with the pleas noted above the respondent-bank had also a case that the appellant was only a badli workman who could be deemed to have worked only on days when the permanent workman or probationer was not employed. The bank did not make available before the Tribunal any documentary evidence to show as to how the appellant could be treated as a badli worker and as to whose place he occupied during the days he worked."
13. This question is also covered by a decision of the Andhra Pradesh High Court in G. Yadi Reddi v. Brooke Bond India Limited , 1993 (3) ALT 728.
14. There cannot, therefore, be any doubt whatsoever that there is no merit, in this contention raised by the learned counsel for the petitioners. These writ petitions are accordingly dismissed, but without any order as to costs.