Himachal Pradesh High Court
Gurdial Singh vs Hp State Electricity Board on 26 June, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No. 4880 of 2010-E.
Decided on: 26.06.2015.
.
Gurdial Singh ....Petitioner.
Versus
HP State Electricity Board, Shimla & others.
...Respondents.
___________________________________________________________
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. H.C. Sharma, Advocate.
For the respondents : Ms. Richa Sharma, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
This writ petition is directed against the Award passed by the learned Industrial Tribunal-cum-Labour Court, whereby he reference made by the Appropriate Government came to be dismissed.
2. The facts in brief may be noticed.
3. The petitioner was engaged as beldar with the respondent-department somewhere in July, 1982 and worked intermittently till 1.4.1999, when he alleges that his services were illegally terminated. He immediately approached the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 2Himachal Pradesh State Administrative Tribunal. However, his petition came to be dismissed on the ground of jurisdiction, vide order dated 6.3.2002. The petitioner thereafter issued a demand .
notice on 9.5.2002 and ultimately on 10.9.2003 the following reference was sent by the appropriate Government for adjudication to the Labour Court:-
"Whether the termination of services of Shri Gurdyal Singh, S/O Sh. Daulat Ram by the Assistant Engineer, HPSEB, Sub Division Nand, District Solan, H.P. w.e.f. 1.4.1999 without complying the provisions of Industrial Disputes Act, 1947 is proper and justified? If not, what relief and service benefits the above workman is entitled to?"
4. The learned Tribunal after completion of pleadings and framing issues recorded the evidence and on the basis of the evidence came to the following conclusion:-
(i) That the petitioner had not completed more than 240 days preceding his retrenchment.
(ii) The petitioner had abandoned the job of his own and had not been retrenched.
(iii) That no juniors to the petitioner had been retained.
5. The award had been assailed on the ground that the order passed by the learned Labour Court is illegal, arbitrary and contrary to law. It is contended that the petitioner even though may not have completed 240 days immediately preceding his retrenchment but then he had completed 240 days in the year 1985 which was sufficiently to meet the ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 3 requirements of law, as it is nowhere envisaged in the Industrial Disputes Act, that the petitioner should have completed 240 days preceding his retrenchment. It is further contended that the .
standing orders formulated by the respondents themselves casts a statutory duties upon them to serve 10 days' notice before terminating the services of a workman and the said standing order is applicable even to the cases where the workman has worked less than 240 days in a calendar year.
6. In so far as the first contention is concerned, suffice it to say that the issue no longer res integra in view of the Division Bench judgment of this Court in Mohd Ali. Vs. The State of Himachal Pradesh and others, wherein this Court has held as under:-
"2. Undisputedly, the appellant had been appointed in 1980 and his services have been dispensed with in the year 1990. He had worked for 240 days in calendar years 1980, 1981, 1982 and 1986 to 1989 and when his services were retrenched in the year 1991, he had not completed 240 days of service. The appellant approached the Labour Court, who set aside the order of retrenchment and ordered his reinstatement in service along with seniority and continuity in service, however back wages in service were denied.::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 4
3. Aggrieved by the order passed by the Tribunal, the respondent preferred writ petition before this Court which was allowed by the learned writ Court by concluding that the respondent had not been in .
continuous service for one year within the meaning of sub-section (1) of Section 25-B of the Act nor he had actually worked for 240 days under the employer during the period of 12 months, preceding the date of his retrenchment within the meaning of sub-section (2) of Section 25-B of the Act, therefore Section 25-F of the Act was not attracted in this case.
4. Before we proceed any further, it will be relevant to make note of the relevant provisions of the Act as attracted to the facts of the present case. Sections 2 (oo), 25-B and 25-F of the Act read thus:-
"[Sec.2(oo)"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 5 contract being terminated under a stipulation in that behalf contained therein; or ]
(c) termination of the service of a workman on the ground of continued ill-health;]"
.
"[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 a 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 the 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 for 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 ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 6
(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 and in the course of his employment; and
(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 retrenched 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 ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 7 equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c)notice in the prescribed manner is served on .
the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]."
5.The learned counsel for the appellant has vehemently argued that the learned writ Court has misinterpreted the provisions of Section 25-B as also Section 25-F of the Act because Section 25-B had to be read in conjunction with Section 25-F of the Act which provides that for each completed year of service the workman would be paid retrenchment compensation and the continuous service has been defined to be 240 days service in a calendar year and, therefore, it is not necessary that the workman should have completed the said service during the period of preceding 12 months.
6.In support of his contention, the learned counsel for the appellant has placed reliance upon decision of the learned single Judge of the Delhi High Court in Suraj Pal Singh and others versus P.O., Labour Court No.111 and another 2002-III-LLJ 885 wherein the learned single Judge held that the period under Section 25-B read with Section 25-F of the Act cannot be restricted to immediately preceding calendar year and, therefore, the workman could not be denied the benefit on that ground as long as an ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 8 employee had worked for 240 days in a calendar year preceding his termination, the employee would be entitled to the benefit, as would be clear from the following observations:-
.
"16. I am thus of the considered view that period under Section 25-B read with Section 25-F of the Act cannot be restricted to immediately preceding calendar year and thus the petitioners cannot be denied the benefit on that ground. As long as an employee has worked for 240 days in any calendar year preceding his termination, the employee would be entitled to the benefit."
7. No doubt, the aforesaid observations support the contention of the appellant, but then it is worthwhile to notice that this judgment was questioned in Letters Patent Appeal in Suraj Pal Singh versus The Presiding Officer and Anr. 2006 (4) SLR 191 wherein the Division Bench did not agree with the aforesaid view of the learned single Judge.
8. While dealing with the expression "continuous uninterrupted service" and also interpretation of the word "year" in Section 25B (1), the Division Bench observed as under:-
"21. In view of the above judgments, the expression "continuous" or "uninterrupted service" means and refers to the days during which the workman was employed and continued to be in service of the employer. It may be stated that absence on account of sickness, authorised leave, accident or strike, which is not illegal or lock-out is to be regarded as a period during which a workman has continued in uninterrupted ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 9 service of the employer. It may also be noted here that any artificial breaks given malafidely by an employer should not be recognised and a workman should be treated to be in continuous service. (Refer Yogendra Singh Rawat v. Hemwati Nandan Bahuguna Garhwal .
University, (1998) 3 SCC 704: [1998 (1) SLR 712 (SC)] and Bhagwati Prasad v. Delhi State Mineral Development Corporation, reported in (1990) 1 SCC 361 : 1990 Lab IC 126 : [1992 (8) SLR 784 (SC)]. Courts and Tribunals will therefore always have power, while applying Section 25B(1) to examine whether the cessation of work was due to any fault on the part of the workman. They can ignore any artificial breaks malafidely given by an employer.
Interpretation of the word "year":
22. The words used in Section 25B(1) is "one year" but the said term has not been defined in the Act. The word "year" has been defined in the General Clauses Act, 1897. Section 3(66) of the aforesaid Act defines the term `year' to mean a period reckoned according to the British Calendar i.e. a period of 12 months from January to December. For the sake of convenience, Section 3(66) of the General Clauses Act, 1897 is reproduced below:-
"Year" shall mean an order reckoned according to the British calendar."
23. However, we do not think that the aforesaid definition as given in the General Clauses Act, 1897 is applicable and should be applied, while interpreting Section 25B(1) of the Act. If definition given in Section 3(66) of the General Clauses Act, 1897 is accepted, any workman who joins employment after 1st January, ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 10 will be denied benefit of Section 25B(1) in the first year of employment. This will be extremely unjust and unfair and such interpretation should not be accepted as we are dealing with a social welfare and a beneficial legislation.
.
24. The Supreme Court in the case of Aspoinwall and Company v. Lalitha Padugady (1995) 5 SCC 642 : AIR 1996 SC 580 : [1995(5) SLR 213 (SC)] had examined the provisions of Payment of Gratuity Act, 1972 and Sections 2 and 4 thereof. The expression "continuous service for not less than 5 years" came up for consideration before the Supreme Court in the said case. After examining the said Sections the Supreme Court came to the conclusion that complete or continuous service has to be calculated with reference to the date on which an employee gets employment. It was held that this is the stage, which is starting point and thereafter the period has to be calculated. Thus, the period of continuous service is to be reckoned from the date of joining of the employment. The Supreme Court rejected the contention that this period of continuous service has to be reckoned with reference to a calendar year as defined in the General Clauses Act,1897.
25. We feel that in view of the fact that the present legislation is social, beneficial and a welfare legislation, workman should be given benefit under Section 25B(1), if he has worked for a continuously or uninterruptedly for a period of 12 consecutive months anytime during the course of his employment. It is not necessary that a worker should have continuously or uninterruptedly worked from January to December in a particular calendar year. Thus, continuous or un-interrupted ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 11 employment for period of 12 consecutive months will satisfy requirement of Section 25B(1) of the Act. Whether 240 days is equal to "one year" under Section 25B(1)?
.
26. Section 25B(1) uses the word "one year", which in common parlance means period of 12 months or 365 days. Can we while interpreting Section 25B(1) reduce this period to 240 days?
27. Sections 25B(1) of the Act being beneficial and welfare provision has to be liberally and broadly interpreted, yet at the same time we cannot amend and modify a statutory provision by incorporating and adding words. Our role is to interpret the law as it exists and not to add and subtract words already used by the legislature or usurp the role of the legislature. The legislature in Section 25B(2) has referred to period of "240 days in the preceding year" following the date of termination as the criteria to determine and decide whether a workman has been in continuous service for a period of one year. The legislature, however, has deliberately not mentioned the period of 240 days during the period of one year as the criteria in Section 25B(1) of the Act. Section 25B(1) nowhere specifies that if a workman has worked for a period of 240 days in a period of "one year", he is deemed to be in uninterrupted service for "one year". The period of 240 days specified in Section 25B(2), cannot be legislated and read into sub-section (1). We cannot, therefore, legislate and incorporate the words "240 days" into Section 25B(1) of the Act. Our judicial pen cannot write these words into the aforesaid sub-section and read them in Section 25B(1), when the legislature has consciously and deliberately not used these words. The ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 12 requirement of legislature, as far as Section 25B(1) of the Act is concerned, is clear and unambiguous. It refers to "continuous" or "uninterrupted" service for a period of one year i.e., 12 consecutive months. We cannot by judicial interpretation decrease this period of .
365 days to 240 days. Of course the period of one year should be interpreted liberally as has been done in the present judgment. The two judgments, in the case of Moti Ceramic Industries (supra) and Metal Powder Co. Ltd. (supra) support and have similarly interpreted Section 25B(1) and (2) of the Act. Bombay High Court in the case of New Great Eastern Spinning and Weaving Co. Ltd. v. Vasant Mahadeo Bidia, 2005 (1) Cur LR 50 has also taken a similar view.
28. We wish to further clarify that the above interpretation is not against workmen. The legislature has been careful and cautious to include certain periods like authorised leave, legal strikes, lock outs, periods during which the employer illegally refuses to permit the workman to do work, etc., as a period during which the workman is deemed to be in continuous or uninterrupted service. Therefore in a given case, a workman may have worked for in fact less than 240 days, but after including the specified periods mentioned in section 25B(1), his continuous or uninterrupted service might be for a period of 12 consecutive months. Accordingly, we hold that period of 240 days is not relevant as far as Section 25B(1) is concerned as the figure "240 days" is not mentioned in the said sub-section and is mentioned only in sub- section (2). It is not possible for this Court to legislate and add the words 240 days in Section 25B(1) of the Act.
::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 13Section 25B(2) of the Act:
29. Sub-section (2) of Section 25B also incorporates a deeming fiction. As per sub-section (2) to Section 25B, if a workman has worked for 240 days or 190 days (in .
case he is employed below ground in a mine) during the period of 12 calendar months preceding the date with reference to which calculation is to be made, he shall be deemed to be in continuous service for a period of one year. In case of a retrenchment, the reference date will be the date on which the retrenchment order is passed. Therefore, if a workman has worked for 240 days (190 days in case he has worked below ground in a mine) during the period of 12 calendar months preceding the date of his retrenchment, the said workman is deemed to have rendered continuous service for a period of one year. Section 25B(2) refers to a period of 12 months immediately preceding and counting backwards from the relevant date and not to any other period of employment. If a workman has worked for more than 240 days during this period of 12 months prior to his retrenchment, he is deemed to be in continuous service for a year. The words "preceding the date with reference to which calculation is to be made"
are not redundant or otiose. The period of 12 months mentioned in Section 25B(2) is not therefore any period of 12 months but the immediately preceding 12 months with reference to which calculation is to be made.
The two Clauses 25B (1) and 25B (2) in operation:
30.Section 25B(2) as per the clause itself, comes into operation when a workman has not been in continuous service within the meaning of sub-section (1) for a ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 14 period of one year. However, in practice and for all practical purposes, a workman will be entitled to protection under section 25F of the Act, if conditions mentioned in either of the two clauses are satisfied. The sub-sections are therefore in alternative. Requirement .
of Section 25B(1) is uninterrupted service for a period of one year and under sub-section (2) requirement is service for a period of 240 days (or 190 days in case worker is employed below ground in a mine) during the preceding 12 calendar months prior to the date of termination/retrenchment. By the deeming fiction in Section 25B(2), a workman who has worked for aforesaid period in the preceding 12 calendar months prior to the date of termination/retrenchment is deemed to have been in continuous service for not less than one year. The two provisions, namely, of Section 25B(1) and 25B(2) are separate and distinct. The requirements and conditions to be satisfied to some extent are also different."
"38.We have examined the claim statement filed by the appellant before the Labour Court. In the said claim statement, it is not mentioned and stated how and why the appellant-workman was "in continuous service for a period of one year" or more. In the affidavit filed by the appellant before the Labour Court, he has stated that he actually worked for 233 days in 1984, 258 days in 1985 and for 27 days in January, 1986. This statement does not appear to be correct as the appellant along with his writ petition had also filed a chart showing actual working days during the period of 1984-1986. As per the said chart, the appellant had worked for 223 days up to December, 1984 and 193 days between January, 1985 to December, 1985 and for 83 days from January, 1986 to September, 1986. "However, even in ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 15 the affidavit filed by the appellant before the Labour Court, no attempt was made to establish and prove that the appellant was "in continuous or interrupted service for period of one year" as provided in Section 25B(1) of the Act and the conditions of the said Section were .
satisfied. The Labour Court also in its award has not referred to Section 25B(1) of the Act whatsoever and has only mentioned Section 25B(2) of the Act. It appears that the appellant did not claim that he is entitled to protection under Section 25B(1) of the Act. Before the learned single Judge also reliance was placed upon Section 25B(2) of the Act and the appellant herein relied upon the said provision and it was submitted that the conditions of the said provision will be satisfied if a workman has worked for period of 240 days in any year and it was not necessary that the r workman should have worked for period of 240 days during the period of 12 months preceding the date of reference, i.e., date of termination. As stated above, we have rejected the contention of the appellant in this regard and have held that Section 25B(2) of the Act refers to period of 12 months from the date with reference to which calculation is to be made, which in the present case is the date of termination and not any period prior to 12 months."
9. Therefore, it is apparent from the aforesaid judgment of the Division Bench that the interpretation as given by the learned single Judge while construing provisions of Sections 25B and 25F of the Act did not find favour with the Division Bench.
10. At this stage, it will be relevant to take note of the fact that the Industrial Disputes Act, 1947 (for short, the 'ID Act'), Chapter V-A containing Sections 25A to ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 16 25J was inserted by the Industrial Disputes (Amendment) Act, 1953 (43 of 1953) w.e.f. 24th October, 1953. Section 25-B as it stood then was as under :
.
"25-B. Definition of one year of continuous service.- For the purposes of Sections 25-C and 25-F, a workman who, during a period of 12 calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.
Explanation. - In computing the number of days on which a workman has actually worked in any industry, the days on which -
(a) he has been laid off under an agreement or as r permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid-off being taken into account for the purposes of this clause,
(b) he has been on leave with full wages, earned in the previous year, and
(c) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave shall not exceed twelve weeks, shall be included."
11. The same Amending Act introduced the definition of 'continuous service' in Section 2 (eee) as under"
"2.(eee) 'continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 17 accident or a 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;"
12. Section 25-B was substituted by Industrial .
Disputes (Amendment) Act, 1964 (36 of 1964) w.e.f.
19-12-1964.
13. The Amending Act of 1964 deleted Section 2(eee), having incorporated in Section 25-B itself the definition of 'continuous service'. It also brought in the concept of preceding 12 calendar months. The earlier definition did not mention "preceding" with reference to period of twelve calendar months. It appears that the decision of the Hon'ble Supreme Court in Sur Enamel and Stamping Works Ltd. v. The Workmen (1964) 3 SCR 616 interpreting Sections 2(eee) and 25-B led to the amendments made by Amending Act of 1964. In Sur Enamel, interpreting Sections 2(eee) and 25-B, it was held that twin conditions were required to be fulfilled before a workman can be considered to have completed one year of continuous service in an industry. It must be shown first that the workman was employed for a period of not less than 12 calendar months and next that during those 12 calendar months, he had worked for not less than 240 days. In that case, the workman had not been employed for a period of 12 calendar months. Therefore, the Hon'ble Supreme Court held that it was unnecessary to examine whether actual days of work were 240 or more for in any case the requirements of Section 25- ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 18 B would not be satisfied by mere fact of number of working days being not less than 240 days. The effect was that if a workman completes actual 240 or more days of work in less than 12 calendar months, .
he would not be entitled to the benefit of beneficial legislation. This anomaly led to the amendment of the ID Act in the manner above stated.
14. It is, therefore, clear that the legislature had consciously used the word "preceding" in Section 25-B with reference to the period of 12 months.
15. The question posed before us is no longer res integra in view of Hon'ble three Judges' decision of the Hon'ble Supreme Court in Surendra Kumar Verma etc. versus The Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another AIR 1981 SC 422 which exposition of law was reiterated by the Hon'ble Supreme Court in Mohan Lal versus The Management of M/s Bharat Electronics Limited AIR 1981 SC 1253 wherein it was held as under:-
"10. It was, however, urged that Section 25F is not attracted in this case for an entirely different reason. Mr. Markenday contended that before Section 25F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25F. That is substantially correct because the relevant provision of Section 25F provides as under :::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 19
"25F. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched 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;
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which, shall be equivalent of fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate government by notification in the Official Gazette)."
Before a workman can complain of retrenchment being not in consonance with Section 25F, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. Section 25B is the dictionary clause for the expression 'continuous service'. It reads as under :
"25B. (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 authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman;::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 20
(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 for 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 a 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,or under this 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;::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 21
(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 has been on maternity leave; so, however, that the total period of such .
maternity leave does not exceed twelve weeks.
11. Mr. Markenday contended that clauses (1) and (2) of Section 25B provide for two different contingencies and that none of the clauses is satisfied by the appellant. He contended that subsection (1) provides for uninterrupted service and sub-section (2) comprehends a case where the workman is not in continuous service. The language employed in sub- sections (1) and (2) does not admit of this dichotomy. Sub-sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter VA.
Sub-section (1) provides a deeming fiction in that where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman. Situations such as sickness, authorised leave, an accident, a strike not illegal, a lockout or a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which would be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. In industrial employment or for that matter in any service, sickness, authorised leave, an accident, a strike which is not illegal, a lockout, and a cessation of work not due ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 22 to any fault on the part of the workman, are known hazards and there are bound to be interruptions on that account. Sub-section (1) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service .
shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter VA be deemed to be continuous service. That is only one part of the fiction.
12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub- section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub-section (2). The conditions are that commencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. It is not necessary for the purposes of sub-section (2) (a) that the workman should be in service for a period of ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 23 one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub-section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2). Sub-section (2) envisages a situation .
not governed by sub-section (1). And subsection (2) provides 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 service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in sub-section (2) (a) it is necessary to determine first the relevant date, i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub-section (2) (a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25F. On a pure grammatical construction the contention that even for invoking sub-section (2) of Section 25B the workman must be shown to be in continuous service for a period of one year would render sub- section (2) otiose and socially beneficial legislation would receive a setback by this impermissible assumption. The contention must first be negatived on a pure grammatical construction of sub-section (2). And in any event, even if there be any such thing in favour of ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 24 the construction, it must be negatived on the ground that it would render sub-section (2) otiose. The language of sub-section (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. .
Markenday referred to some authorities, we will briefly notice them.
13. In Sur-Enamel & Stamping Works (P) Ltd. v. Their Workmen. (1964) 3 SCR 616 : (AIR 1963 SC 1914) referring to Section 25B as it then stood read with Section 2 (eee) which defined continuous service, this court held as under (at p. 1917 of AIR) :
"The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of Section 25B.
Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a Period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workman have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of Section 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days."
If Section 25B had not been amended, the interpretation which it received in the aforementioned case would be binding on us. However, Section 25B and Section 2 (eee) have been the subject-matter of amendment by the Industrial Disputes (Amendment) Act, 1964. Section 2 (eee) deleted and Section 25B was ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 25 amended. Prior to its amendment by the 1964 Amendment Act, S. 26B read as under :
"For the purposes of Sections 25C and 25F a workman who during the period of 12 calendar months has .
actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry."
14. We have already extracted Section 25B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma v. Central Government Industrial-cum-Labour Court, New Delhi, (1980) 4 SCC 443 : (AIR 1981 SC 422) Chinnappa Reddy, J., after noticing the amendment and referring to the decision in Sur Enamel and Stamping Works (P) Ltd. case (AIR 1963 SC 1914) held as under (at p. 426 of AIR) :
"These changes brought about by Act 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 been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year."
In a concurring judgment Pathak J. agreed with this interpretation of Section 25B (2). Therefore, both on principle and on precedent it must be held that Section ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 26 25B (2) comprehends a situation where a workman is not in employment for period of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i. e. the .
date of retrenchment. If he has. he would be deemed to be in continuous service for a period of one year for the purpose of Section 25B and Chapter VA."
16. From the aforesaid exposition of law, the following legal position emerges:-
(i) Section 25B (1) and Section 25B (2) of the Act are separate and distinct and even requirements and conditions to be satisfied to some extent are different.
(ii) While insofar as Section 25B (1) is r concerned, the workman could be given benefit under this Section if he had worked continuously or uninterruptedly for a period of 12 consecutive months any time during the course of his employment and it was not necessary that a worker should have continuously or uninterruptedly worked from January to December in a particular year.
Therefore, continuous or uninterrupted employment for a period of 12 consecutive months would satisfy the requirement of Section 25B (1) of the Act.
(iii) The period of 240 days does not find mention in the provisions of Section 25B (1) and is only referred in Section 25B (2) and therefore cannot be read into Section 25B (2) and the Court had no power to ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 27 legislate or incorporate the words "240 days"
in Section 25B (1) of the Act.
(iv) Section 25B (2) of the Act only refers to a period of 12 months immediately .
preceding and counting backwards from the relevant date and not to any other period of employment. If a workman had worked for more than 240 days during this period of 12 months prior to his retrenchment, he would be deemed to be in continuous service for a year. The words "preceding the date with reference to which calculation is to be made" cannot be rendered redundant or otiose.
(v) The period of 12 months mentioned in Section 25B (2) of the Act is not therefore any period of 12 months but the immediately preceding 12 months with reference to which calculation is to be made.
17. Therefore, in view of what has been discussed above, it can safely be concluded that the provisions of Section 25-B (2) read with Section 25-F of the Industrial Disputes Act, 1947, are only applicable to workmen, who have worked for a period more than 240 days in the preceding calendar year from the date with reference to which calculation is to be made which in the present case is the date of termination and not to any other period prior to 12 months/calendar year."
::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 287. In view of the aforesaid exposition of law, it can safely be concluded that what the law provides is not what has been argued by the learned counsel for the petitioner but is .
otherwise inasmuch as Section 25 of the Act is only applicable to a workman who has worked for a period of more than 240 days in the preceding calendar year from the date with reference to which calculation is to be made which in the present case is the date of termination and not any period prior to 12 months/calendar year.
8. In so far as the applicability of the standing orders is concerned, though undoubtedly the same were enacted and notified but then the government was pleased to exempt the establishment of the respondent from all the provisions of the Act. This fact was duly taken note of by a Division Bench of this Court while adjudicating CWP No. 474 of 2005, titled Executive Engineer Vs. Surinder Singh and another wherein it was held as under:-
".... From the record and discussion at the Bar, the following admitted facts emerge (a) None of respondents-employees had completed 240 days prior to the date of alleged disengagement;
(b) applicability of provisions of the Standing Orders Act have been exempted by virtue of Notification dated 11th September, ::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 29 1985, however, published in gazette on 22nd August, 1992; (c) Since 1992 the respondents-employees are not in service of the petitioner which can be either due to disengagement or abandonment.
.
The Standing Orders Act has been enacted with the object of defining, with sufficient precision the conditions of employment and also to make the said conditions known to the workmen employed with the industrial establishment. The Act provides model Standing Orders. However, each of the industrial establishments can have their own Standing Orders, in conformity with the provisions of the Standing Orders Act to be duly certified by the certifying officer. Section 14 empowers the Government, by Notification to be published in the official gazette, to exempt conditionally or unconditionally, any industrial establishment from all or any of the provisions of the Standing Orders Act.
Notification exempting the petitioner-Board from the applicability of all the provisions of the Act is reproduced:-
"EXEMPTION FROM THE PROVISIONS OF THE ACT (Issued and published in Hindi in RHP dated 22.8.92 p. 1180) Shimla2, the 11th September, 1985.
No.12-5/85-Shram.-In exercise of the powers conferred by him under Section 14 of the Industrial Employment (Standing Orders)Act, 1946 (Act No. XX 1946), the Governor, Himachal Pradesh is pleased to exempt the establishment of Himachal Pradesh State Electricity Board from all the provisions of the said Act."::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 30
From the aforesaid, it is clear that petitioner H.P. State Electricity Board has been exempted from all the provisions of the Standing Orders Act.
In this view of the matter, the Tribunal wrongly relied .
upon the provisions of the Standing Orders Act to hold that the disengagement is bad for want of issuance of notice giving 10 clear days to the employees. Admittedly, the employees had not completed 240 days and the Tribunal could not have come to the rescue of the employee."
9. The learned counsel for the petitioner would further contend that the retrenchment/termination of the petitioner's service is in violation of the provisions and the Industrial Disputes Act, more particularly the provisions as contained in Section 25 (G) and (H) providing for "last come first go"
inasmuch as juniors to the petitioner have been retained. The learned Labour Court has come to a categorical conclusion that the petitioner has failed to establish that juniors to the petitioner have been retained and permitted to continue. Even during the course of hearing, the petitioner has failed to point out any junior who may have been retained after retrenching the services of the petitioner.::: Downloaded on - 15/04/2017 18:27:15 :::HCHP 31
10. In view of the aforesaid discussion, I find no merit in the petition and the same is accordingly dismissed, leaving the parties to bear their own costs.
.
(Tarlok Singh Chauhan)
Judge
26th June, 2015
(krn guleria)
r to
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