Gujarat High Court
Ravikumar Dineshbhai Patel vs Deputy Conservator Of Forest on 22 September, 2025
NEUTRAL CITATION
C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5185 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 5191 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
✔
==========================================================
RAVIKUMAR DINESHBHAI PATEL
Versus
DEPUTY CONSERVATOR OF FOREST
==========================================================
Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
MS.DIXA PANDYA, AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 22/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned AGP Ms.Dixa Pandya waives service of notice of Rule on behalf of respondent- State.
2. The present petitions are filed under Articles 226 and 227 of the Constitution of India, challenging the award passed by the learned Labour Court No. 2, Ahmedabad, Page 1 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined in Reference (T) No. 655 of 2015, whereby the reference filed by the petitioner was dismissed on the ground that the petitioner failed to establish continuity of service as required under Section 25(b) of the Industrial Disputes Act, 1947 (herein after referred to as the "ID Act").
3. According to the petitioner, he was appointed as a Peon on a daily wage basis in the office of the Deputy Conservator of Forests at Gandhinagar with effect from 21.01.2012. He was paid wages at the rate of ₹286 per day. By a notice dated 19.11.2014, and in compliance with the provisions of Section 25(f) of the ID Act, his services were terminated after payment of notice pay and retrenchment compensation. Subsequently, on 18.02.2015, the petitioner was re-employed by the respondent and resumed duty as per the joining report dated 02.03.2015. However, another termination notice dated 23.06.2015 was issued, ending the petitioner's services with effect from 23.07.2015. Aggrieved by this action of the respondent authority, the petitioner raised an industrial dispute before the learned Labour Court, seeking reinstatement with effect from 23.07.2015. The learned Labour Court, after considering the evidence on Page 2 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined record, passed an award against the petitioner by rejecting the reference, which is now under challenge before this Court.
4. Heard learned advocate Ms.Vidhi Bhatt for the petitioner and learned AGP Ms.Dixa Pandya for the respondent-State.
5. Learned advocate Ms. Bhatt submits that, as per the Government Resolution dated 15.09.2015, daily wage workers become eligible and qualified for the benefits of regularization upon completion of five years of service in terms of the earlier G.R. dated 17.10.1988. She further submits that the respondent authority had engaged employees through an outsourcing agency and, although the petitioner had completed three years of service, his services were discontinued by notice dated 19.11.2014. At the relevant point in time, the provisions of Section 25(g) of the ID Act were not complied with by the Deputy Conservator of Forests, and there was also a violation of Section 25(h) of the ID Act. Learned advocate Ms. Bhatt submits that the petitioner raised an industrial dispute before the learned Conciliation Officer, and a reference was accordingly made. During Page 3 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined the pendency of the dispute, a settlement was arrived at between the parties, and the petitioner was reinstated in service vide communication dated 18.02.2015. However, within a short span of four months, his services were again discontinued, in violation of Sections 25(f), 25(g), and 25(h) of the ID Act. Learned advocate Ms.Bhatt submits that the termination was ostensibly on the ground of non-availability of work, but the record indicates that work was being carried out through an outsourcing agency. Therefore, the petitioner ought to have been reinstated, as the mandatory provisions of the ID Act were violated. However, the Labour Court overlooked these aspects and erroneously rejected the reference. Learned advocate Ms.Bhatt submits that similarly situated employees, whose services were also terminated, had raised disputes before the Labour Court, and settlements were arrived at in light of the G.R. dated 06.04.2016, pursuant to which they were reinstated. Relying on the communication dated 15.05.2018, whereby those employees were directed to resume duties at specific locations, she submits that by not extending similar benefits to the present petitioner, Page 4 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined the respondent has engaged in unfair labour practice, thereby entitling the petitioner to reinstatement. 5.1. Learned advocate Ms.Bhatt submits that the termination of the petitioner's service constitutes "retrenchment" as defined under Section 2(OO) of the ID Act, and therefore, the Labour Court was required to independently examine whether the provisions of Sections 25(g) and 25(h) of the ID Act were complied with by the employer, irrespective of whether the petitioner had completed 240 days of service. Learned Advocate Ms. Bhatt submits that the Learned Labour Court, while dismissing the reference, erroneously held that the petitioner was not entitled to the benefits under Government Resolution dated 17.10.1988 on the ground that he had not completed five years of service. Learned advocate Ms. Bhatt further submits that the petitioner's claim was never for regularization or for permanent status under the said Government Resolution. As is evident from the terms of reference, the Labour Court was specifically directed to adjudicate upon the issue of the petitioner's entitlement to the relief of reinstatement. However, the Labour Court, by placing Page 5 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined reliance on the Government Resolution dated 17.10.1988 and dismissing the reference on that basis, committed an error. Accordingly, the impugned award deserves to be interfered with. Learned advocate Ms. Bhatt further submits that, as per the judgment of the Apex Court in Workmen of American Express International Banking Corporation v. Management, reported in (1985) 4 SCC 71, Sundays and public holidays are required to be taken into account while computing the 240 days of continuous service under Section 25B of the ID Act. The Learned Labour Court, by excluding such holidays from the computation, erred in holding that the petitioner had failed to establish continuity of service. Learned advocate Ms. Bhatt has also relied upon the judgment of the Apex Court in Surendranagar District Panchayat Versus Dahyabhai Amarsinh reported in AIR 2006 SC 110 , and contended that the learned Labour Court ought to have considered the petitioner's case under Section 25B(1) of the ID Act. However, by erroneously applying the standard under Section 25B(2), the learned Labour Court again fell into error, and hence, the impugned Page 6 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined award is liable to be set aside. Learned Advocate Ms. Bhatt has placed reliance upon the judgment of the Apex Court in the case of Devinder Singh Versus Municipal Council, Sanaur, reported in (2011) 6 SCC 584, as well as in the case of Ajaypal Singh Versus Haryana Warehousing Corporation, reported in (2015) 6 SCC 321, and further relied upon the decision of the Division Bench of this Court rendered in Letters Patent Appeal No. 306 of 2008. It is submitted that the learned Trial Court has committed an error in disbelieving the case of the present petitioner. Therefore, the impugned order is vitiated and deserves to be quashed and set aside.
6. Per contra, learned AGP, Ms. Pandya, appearing on behalf of the respondent, has submitted that the impugned award passed by the learned Labour Court in the year 2016 is sought to be challenged by way of the present petition, which has been filed in the year 2024, after an inordinate and unexplained delay of eight years. It is submitted that the petitioner was initially engaged as a daily wager and was called upon to render services as and when required. He was remunerated strictly in Page 7 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined accordance with the actual work performed. The petitioner's engagement was not against any sanctioned post, nor was it made pursuant to any regular recruitment process. His services were intermittent and sporadic in nature. As per the petitioner's own averments, he rendered services for a total period of only two years and did not complete 240 days of continuous service in the year immediately preceding the alleged termination. It is further submitted that, at the time of termination of the petitioner's services, the mandatory provisions of Section 25(f) of the ID Act, were duly complied with statutory notice was issued, and a compensation amount of Rs. 5,694/- was paid to him via cheque dated 12.01.2015. It is further contended that the services of the petitioner were originally terminated on 17.11.2014. However, he was subsequently re-engaged for daily wage work by communication dated 18.02.2015, wherein it was clearly stated that his engagement was purely on an ad hoc basis and subject to the availability of work, and that he could be disengaged at any time without notice. Learned AGP Ms. Pandya submitted that despite being fully Page 8 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined aware of the ad hoc nature of his appointment, the petitioner voluntarily accepted the said terms and even addressed a letter dated 02.03.2015 expressing his willingness to join the respondent office under such conditions. It is thus submitted that the petitioner is not entitled to claim the benefit of the Government Resolutions dated 15.09.2014 or 17.10.1988. Accordingly, the learned Labour Court has rightly dismissed the reference on the ground that the petitioner does not satisfy the criteria stipulated under Section 25(b) of the ID Act.
7. Having considered the submissions advanced by the learned advocates for the respective parties, and upon perusal of the reasoning assigned by the learned Labour Court, it emerges that the petitioner had raised an industrial dispute before the Labour Court seeking a declaration that the termination of his services dated 23.07.2015 was illegal, and further sought consequential reliefs on the ground of alleged violation of Sections 25(G) and 25(H) of the ID Act. From the statement of claim filed by the petitioner, it appears that he had rendered services with the respondent authority from Page 9 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined 21.01.2012 to 23.07.2015. However, in its written statement before the Labour Court, the respondent contended that the petitioner was engaged from 21.02.2012 to 17.11.2014. Thereafter, his services were terminated by notice dated 19.11.2014, after due compliance with Section 25(F) of the ID Act, including the payment of retrenchment compensation. In respect of the said termination order dated 18.11.2014, the petitioner had earlier raised an industrial dispute by filing IDR No. 199 of 2014 before the learned Labour Commissioner. During the course of conciliation proceedings, a settlement was arrived at, pursuant to which the petitioner was re-engaged by the respondent vide communication dated 18.02.2015. A copy of this communication, which forms part of the record at page 79 of the petition, clearly indicates that the petitioner's appointment was purely on an ad hoc basis, with an express condition that his services would be discontinued upon completion of the assigned work or upon non-availability of further work. Despite being fully aware of such conditional re-engagement, the petitioner accepted the terms and joined duty with the respondent Page 10 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined authority on 02.03.2015. Subsequently, his services were again terminated by issuance of a one-month notice dated 23.06.2015 on the ground of non- availability of work. This termination order was the subject matter of challenge before the Labour Court in the present reference. It is contended by the learned AGP appearing for the respondent that the petitioner's total days of service must be calculated from the initial date of engagement in 2012. On such computation, it is evident that the petitioner worked for 242 days during 2012-13, 221.5 days during 2013-14, and 27 days in 2014-15 before his termination on 17.11.2014 due to non-availability of work. Importantly, the termination order dated 19.11.2014 which came after the completion of nearly two years of service has not been challenged in the present proceedings. Thereafter, the petitioner was re-employed under fresh terms and conditions which explicitly stated that his services could be terminated due to non-availability or completion of work. From the date of re-engagement i.e., 18.02.2015 and his joining on 02.03.2015, the petitioner did not complete one year of continuous service. Hence, the applicability of Section Page 11 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined 25(B)(1) of the ID Act does not arise, as the said provision becomes relevant only when a workman completes six months or one year of continuous service. For better understanding, Section 25(B)(1) is required to be referred, which is reproduced hereinbelow:-
"[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 authorised 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;"
8. This Court has considered the decision relied upon by the learned advocate, which was rendered by the Division Bench in Letters Patent Appeal No. 306 of 2008. However, it is pertinent to note that the said decision was delivered in the context of a factual background where the statement of claim filed by the employees pertained to the applicability of Section 25(B)(1) of the ID Act. In that case, the interruption in service was not attributable to any fault on the part of the employees, and such interruption was held to be protected under the provisions of Section 25(B)(1) of the ID Act. Further, Page 12 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined this Court has also placed reliance on the decision rendered in Special Civil Application No. 2973 of 2020 and allied petitions, wherein it has been held as under:-
"10. Undisputedly, Sections 25(B)(1) and 25(B)(2) of the ID Act operate in distinct fields. Section 25(F) of the ID Act mandates that a workman must be in continuous service for not less than one year under the employer before its provisions are attracted. In contrast, Section 25(B) of the ID Act provides the criteria for what constitutes 'continuous service'. Specifically, even if a workman has not been in actual, uninterrupted employment for a full year, he shall be deemed to have completed one year of continuous service if he has actually worked for 240 days during the preceding 12 months. This interpretation suggests that there is no requirement for the workman to have remained employed for the entire 12-month period. From the language of Section 25(B)(1) of the ID Act, it is evident that 'continuous service' includes not only uninterrupted employment but also service interrupted due to certain specified reasons, such as: sickness, authorized leave, accident, a strike (not being illegal), a lockout, or cessation of work not attributable to any fault on the part of the workman. Section 25(B) of the ID Act thus provides an inclusive and notional definition of continuous service. For the purposes of Chapter V-A of the Act, a workman who has actually worked for 240 days during the preceding 12 calendar months is deemed to have completed one year of continuous service. Such service, even if interrupted for reasons beyond the control of the workman, is still treated as continuous. Section 25(B) of the ID Act gives a sort of artificial definition of the expression every completed year, because in section 25(F)(b) of the ID Act it is suggested that it Page 13 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined should be a service of one complete year of continuous service. Section 25(B) of the ID Act contains a notional definition that once 240 days service has been put in by workmen in preceding 12 months it will be deemed to continuous service for a year. For the purpose of calculation of number of days on which workmen has actually worked, the days to be included are mentioned in explanation under section 25(B). Section 25(B)(2) of the ID Act begin with the clause "where a workman is not in continuous service within the meaning of clause one, for a period of one year or six months he shall be deemed to be in continuous service under the employer-a period of one year". Section 25(B)(1) of the ID Act suggests that interruption on this account have to be ignored and inspite of these interruptions an employee is required to be treated as in a continuous service of the employer. This court has referred the decision rendered by High Court of Delhi in the case of Surajpal Singh Versus The The Presiding Officer and another reported in 2005 (85) DRJ 70(DB) wherein, the word "year" is interpreted. The Delhi High Court has held as under:-
"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. Out 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) no Page 14 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined where 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 then in Section 25B(1), when the Legislature has consciously and deliberately not used those words. The 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 interruption decrease this period of 365 days to 240 days. Of course the period of one year should be interrupted liberally as has been done in the present judgment. The two judgments, in the case of Moti Ceramic Industries (2000 Lab IC 1921)(Guj)(supra) and Metal Powder Co.Ltd. (1985 (2) Lab LJ 376) (Mad)(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/s. Vasant Mahendeo Bidia reported in 2005(1) Cur LR 50has 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 authorized 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 Page 15 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined 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. Section 25B (2) of the Act:
29. Sub-Section (12) 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 calender 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 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 calender 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 back wages 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.Page 16 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025
NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined
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 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 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 deeming fiction in Section 25B (2), the workman who has worked for aforesaid period in the preceding 12 calendar month 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."
10.1 Therefore, in the considered opinion of this Court, a workman may, in fact, have worked for less than 240 days; however, upon inclusion of the specified periods mentioned in Section 25(B)(1) of the ID Act, his service may still be regarded as continuous and uninterrupted for a period of twelve consecutive months. It is important to note that the requirement of having worked for 240 days is not found in sub-section (1) of Section 25(B) of the ID Act, but rather appears specifically in sub-section (2). Therefore, it would be inappropriate to add the words 240 days in section 25(B)(1) of the ID Act.
11. This court has also referred the decision of Apex Court in Page 17 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined the case of Mohanlal Versus Bharat Electronics reported in 1981 3 SCC 225 wherein, it is held that the language employed in sub- sections (1) and (2) of section 25(B) of the ID Act does not admit of any dichotomy. Sub-sections (1) and (2) introduced a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V-A. Sub-section 1 provides a deeming fiction in that where the workman is in service for certain period, for that period he shall be deemed to be in a continuous service even if his service is interrupted on account of the reasons mentioned which is not due to any fault on the part of the workman. That section suggests that 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. These sub-sections mandate 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 V-A be deemed to be continuous service i.e. only one part of the fiction. 11.1. Sub-section 2 incorporates another deeming fiction for 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. Page 18 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025
NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in sub-section (1) for a period of one year or six months. The condition provided is 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. Sub-section (2) envisages a situation not governed by sub-section (1). And sub-section (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 proceeding the relevant date being date of retrenchment. 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 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 of the ID Act.
11.2 In an identical situation, the Apex Court in the case of Mohd. Ali Versus State of Himachal Pradesh reported in 2018 15 Page 19 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined SCC 641 has held that the workman though worked since the year 1980 to 1990, however, did not complete 240 days in the immediate preceding year of his dismissal, is not entitled to take the benefit of provision of section 25 F of the ID Act. 11.3 This Court has also referred the decision rendered by the Division Bench of this Court in the case of Zonal Manager, State Bank of India Versus Modi Rajeshkumar Shantilal reported in 2018 3 GLR 2326 wherein, in the background of facts, in the statement of claim it is claimed that he did not only work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995 but from April, 1992 to June, 1993 he was in service except for cessation without his fault. The Division Bench in that background has held as under:-
"7 While deciding the issue (A), what needs to be considered is that the respondent workman had specifically made out a case in the Statement of Claim that he had worked from 03.01.1989 to 31.12.1995. For the period from 01.04.1994 to 31.12.1995, he had clearly stated that he had worked for more than 240 days. In addition thereto it was his specific case that he was in continuous service for over a year of service and therefore there was no reason for applying the deeming fiction of 240 days of working days in a period of less than a year.
7.1 Section 25-F of the Industrial Disputes Act,1947 requires the employer to follow the procedure thereunder when a workman is employed in an industry and who has been in continuous service for not less than one year. "Continuous service" is defined under Section 25-B of the Act. Section 25- B(1) suggests that the 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, authorized leave Page 20 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined etc. Section 25-B(2) suggests that, when he is not in continuous service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could not have considered the Certificate showing the number of working days as 319, as "that period was not a period preceding 12 months prior to retrenchment". In our opinion, this submission of Shri Desai, is without merit. Continuous service as defined under Section 25-B suggests the entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If for a certain period the employer is in no position to provide work, cessation of such work without the fault of the employee would not be an interruption in service and the employee would be deemed to be in service for such period. It was the case of the respondent workman here, by a positive assertion in the Statement of Claim that not only did he work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995, but that from April 1992 to June 1993 he was in service except for the cessation without his fault, and therefore the case squarely fell within the domain of Section 25-B(1) of the Act. The employer having failed to discharge its burden by producing vouchers though so ordered under Exh.18, cannot now be heard to say that the fiction of the employee having worked for a period of 240 days as envisaged under Section 25-B(2) of the Act would apply. Having failed to do so, interruptions need to be ignored and the respondent workman, as observed by the learned Single Judge needs to be treated to be in continuous service without interruption as defined under Section 25-B(1) of the Act. It is relevant to note one important aspect that Section 25B(1) had been discussed by Apex Court in case of Surendranagar District Page 21 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined Panchayat Vs. Dahyabhai Amarsinh reported in 2005 (8) SCC page
750. Relevant para 8 of this decision is quoted as under:
"S8. To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less than one year. Sec. 25B of the Act defines continuous service for the purpose of Chapter V-A .SLay -off and Retrenchment. The purport of this section is that if a workman has put in uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lockout or cessation of work, that is not due to any fault on the part of the workman, shall be said to be continuous service for that period. Thus the workman shall be said to be in continuous service for one year i.e. 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25-B. However, the workman must have been in service during the period i.e. not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned not only on the days he has actually worked but also on the days on which he has not worked. The import of sub-
section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of the Section 25B introduced the fiction to the effect that even if the workman is not in continuous service within the meaning of clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an Page 22 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined employer if he has actually worked for the days specified in clauses (a) and (b) of Sub-section (2). By the legal fiction of sub- section (2)(a)(i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the section postulate that if the workman has put in at least 240 days with his employer, immediately, prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F." 7.2 What is meant by continuous service for the purpose of Chapter VA has been defined under Section 25B.The requisites for treating a person to be in continuous service for the requisite period,in case of Section 25F is that either he should be in uninterrupted service including service which may be interrupted on account of sickness or authorized leave etc which is not due to fault of workman or cessation of work for no fault of the workman. If a workman completes continuous service of employment of more than one year as is so established in the present case, on the failure of the employer to discharge the burden adverse inference needs to be drawn. These facts must be reflected clearly in reference to the date of retrenchment with any block of twelve months with reference to continuous service. In the present case the respondent workman has established continuous service on the test of 25(B) and therefore the deeming fiction of completion of 240 days would not set off the fact of the workman being in continuous service for one year including interruptions beyond his control.""
9. As it is an admitted position that the petitioner did not complete 240 days of continuous service in the Page 23 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025 NEUTRAL CITATION C/SCA/5185/2024 JUDGMENT DATED: 22/09/2025 undefined preceding year and had not worked for a period of one year, this Court is of the considered view that the learned Labour Court has committed no error in dismissing the reference. The decision relied upon by the learned advocate for the petitioner pertains to a different factual matrix and, therefore, does not aid the case of the petitioner.
10. Resultantly these petitions are dismissed.
11. Rule is discharged.
(M. K. THAKKER,J) NIVYA A. NAIR Page 24 of 24 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 03:32:26 IST 2025