Calcutta High Court
Balmer Lawrie And Co. Ltd. vs First Industrial Tribunal Of West ... on 20 September, 2006
Equivalent citations: 2006(4)CHN860, (2007)IILLJ81CAL, 2006 LAB. I. C. 3845, (2007) 50 ALLINDCAS 58 (CAL), (2007) 1 CURLR 110, (2007) 112 FACLR 787, (2007) 3 LAB LN 761, (2007) 1 SERVLR 765, (2006) 4 CAL HN 860, (2007) 50 ALLINDCAS 58
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
JUDGMENT Debasish Kar Gupta, J.
1. The petitioner company files this writ application challenging the award dated July 4, 1995 passed by the First Industrial Tribunal, West Bengal and published by the Government as per Order No. 1663-I.R. dated August 7, 1995.
2. The respondent No. 3 was a clerk in the Tea Export Division Godown of the petitioner company. He was appointed by the respondent company in the above post on September 11, 1986. His service was terminated by the respondent on June 4, 1988. The respondent No. 3 approached the State Government for settling his dispute. Ultimately, the Government of West Bengal, Labour Department by an order dated March 16, 1991 referred the dispute to the respondent No. 1, i.e. the First Industrial Tribunal, West Bengal under Section 10 read with Section 2A of the Industrial Disputes Act, 1947 for adjudication of the following issue:
Whether the termination of service of respondent No. 3 was justified? To what relief, if any, is he entitled?
3. The stand taken by the respondent No. 3 before the respondent Tribunal was that he was a permanent employee under the petitioner company. His service was terminated by the respondent company without issuing any chargesheet. He had E.S.I. Card. He was covered by P. F. schemes. He used to get bonus, dearness allowance and house rent allowance. As such he had a lien on the service. So, the respondent No. 3 prayed for his reinstatement in the service with back wages before the respondent Tribunal.
4. The case of the petitioner company before the respondent Tribunal was that the respondent No. 3 was a casual worker on a daily rate basis. He was paid @ Rs. 25 per day. He had worked less than 240 days in a calendar year during the tenure of his deployment under the petitioner company. Since the respondent No. 3 was a casual worker no disciplinary proceeding was required to be initiated for termination of his service.
5. While considering the validity of order of termination of service of the respondent No. 3, the respondent Tribunal decided that the Sundays and other holidays should have been included in counting the actual working days. In that event it would transpire that the concerned workman worked for more then 240 days in a year. On the basis of the above observation the respondent Tribunal held that the respondent No. 3 was not a casual worker. Rather he was a permanent employee having lien on service. The learned Tribunal further held that since no chargesheet was issued in terminating of the services of the respondent No. 3, the order of termination was bad and not tenable in law. The respondent Tribunal further came to the conclusion that the respondent No. 3 was entitled to get reinstatement with full back wages and other benefits.
6. Mr. Arunava Ghosh, learned Advocate appearing on behalf of the petitioner company, submits that the impugned order cannot be sustained in law. Relying upon the provisions of Section 25B(2)(a)(ii) of the Industrial Disputes Act, 1947, Mr. Ghosh submits that the respondent Tribunal was in error of law in deciding that the Sundays and other holidays should have been included in actual working days. He further submits that in determining the question as to whether the respondent No. 3 was a permanent employee under the petitioner company payment of bonus, dearness allowance, house rent allowance or extending the benefit of E.S.I, scheme or P.F. scheme were extraneous considerations. Casual workman is also entitled to those benefits. Mr. Ghosh submits the paid Sundays and holidays were required to be taken into consideration in counting the actual number of days worked by the workman under the employer for the purpose of Section 25B(2)(a)(ii) of the Industrial Disputes Act, 1947. Mr. Ghosh further submits that from pay roles, it appears that in counting the working days of the respondent No. 3, the paid Sundays and paid holidays were taken into account but the unpaid Sundays and holidays were not taken into account. But after such calculation, the number of actual working days of the respondent No. 3 in a calender year was below 240 days. So, the impugned award is liable to be set aside.
7. Mr. Ghosh relies upon the decision of J.K. Iron and Steel Co. Ltd., Kanpur v. Iron and Steel Mazdoor Union Kanpur to submit that it was not open to the Tribunal to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper. Mr. Ghosh further relies upon the decision of Workmen of American Express International Banking Corpn. v. Management of American Express International Banking Corpn. , to show that in order to count actual number of days in accordance with the provisions of Section 25B(2)(a)(ii) of the Industrial Disputes Act, 1947, the paid Sundays and holidays are to be taken into consideration. Mr. Ghosh further relies upon the decisions of Malkiat Singh v. Labour Commissioner and Anr. reported in 1997(75) FLR 396 and Himalaya Drug Co., Bangalore v. Taj Ahmed reported in 2005 LLR 754 to show that for the purpose of counting continuous service under the aforesaid provision of the Industrial Disputes Act, 1947, the paid Sundays and holidays are required be taken into consideration. With regard to the entitlement of the respondent No. 3 for back wages, Mr. Ghosh relies upon the decision of General Manager, Haryana Roadways v. Rudhan Singh to show that such order cannot be passed in mechanical manner.
8. Mr. Indranath Mukherjee, learned Advocate appearing on behalf of the respondent No. 3, submits that it is evident from the pay roles produced before the respondent Tribunal that the respondent No. 3 was paid for the Sundays though he did not work for those Sundays. Mr. Mukherjee further submits that the respondent No. 3 enjoyed the bonus, dearness allowance, house rent allowance as also the benefits under the E.S.I, scheme and P.F. scheme. So admittedly he was a permanent employee under the petitioner company. Mr. Mukherjee further submits that the expression "actually worked" under the employer would not mean those days only when the worker worked with Hammer, Sickle and Pen. Therefore, the order of termination simpliciter passed by the petitioner company was bad in law.
9. Mr. Mukherjee relies upon the decision of H.D. Singh v. Reserve Bank of India and Ors. , to submit that in absence of any evidence to the contrary the Tribunal had necessarily to draw the inference that the respondent No. 3 had worked for more than 240 days in a calender year under the petitioner company. Mr. Mukherjee also relies upon the decision of Workman of American Express International Bank Corpn. (supra) to submit that Sundays and other holidays are to be included in counting the actual working days of the respondent No. 3 under the petitioner company.
10. Having heard the learned Counsels appearing for the respective parties as also considering the materials-on-record I find that the respondent Tribunal while deciding the issue as to whether the termination of service of the respondent No. 3 was justified, made an attempt to ascertain whether the respondent No. 3 actually worked for 240 days in a calendar year in accordance with Section 25B(2)(a)(ii) of the Industrial Disputes Act, 1947. In doing so the respondent Tribunal found that the respondent No. 3 had worked for 227 days in the year 1986-87 and for 126 days from September, 1987 to June, 1988. In addition to the above days, the respondent tribunal added intervening Sundays and holidays to come to conclusion that the respondent No. 3 worked for more than 240 days in a year. Besides the respondent Tribunal took into account the factors of getting bonus, dearness allowance, house rent allowance by the respondent No. 3. The respondent Tribunal further took into account the facts that the respondent No. 3 had enjoyed the benefits of E.S.I, scheme and Provident Fund scheme.
11. With regard to the question of including Sundays and holidays in calculating the actual working days of the respondent No. 3, the respondent Tribunal made the following observations:
Now the question is whether Sundays and holidays could be included while counting actual working days. The decision of the Apex Court is very much clear on this point. The expression 'actually worked' under the employer would not mean those days only when the worker worked with hammer, sickle or pen. But necessarily it would comprehend all those days during which he was in the employment of the employer. Here, in this case intervening Sundays and holidays ought to have been included. If Sundays and holidays would have been included in the actual working days, then it would transpire that the concerned workman worked for more than 240 days in a year.
12. In my view, the respondent Tribunal was in error of law in taking into account the unpaid Sundays and holidays at the time of calculating actual working days of the respondent No. 3 in a year. According to me in order to count the number of days "actually worked under the employer", in addition to those days when the workman worked with hammer, sickle or pen, Sundays and holidays during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing order etc., are to be taken into account. Since the respondent Tribunal took into account the Sundays and holidays (both paid and unpaid) in counting the continuous service of the respondent No. 3, the same cannot be sustained in law. In this regard relevant portions of the case of Workmen of American Express International Banking Corporation (supra) are quoted below:
5. Section 25F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief under Section 25F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in Section 25B of the Industrial Disputes Act. In the present case, the provision which is of relevance is Section 25B(2)(a)(ii) which to the extent that it concerns us, provided that a workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is "actually worked under the employer". This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract or service or by compulsion of statute, standing orders etc. The learned Counsel for the Management would urge that only those days which are mentioned in the Explanation of Section 25B(2) should be taken into account for the purpose of calculating the number of days on which the workmen had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression "actually worked under the employer". The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expense of the main provision. If the expression "actually worked under the employer" is capable of comprehending the days during which the workman was a employment and was paid wages and we see no impediment to so construe the expression there is no reason why the expression would be limited by the explanation. To give it any other meaning than what we have done would bring the object of Section 25F very close to frustration. It is not necessary to give examples of how Section 25F may be frustrated as they are too obvious to be stated.
13. In my view in counting the actual working days, the payment of bonus, dearness allowance, house rent allowance or extending the benefit of E.S.I, scheme or Provident Fund scheme cannot be treated as relevant factors in view of the provisions of Section 25B(2)(ii) of the Industrial Disputes Act, 1947. Those benefits were extended to the respondent No. 3 in accordance with the provisions of law having no connection with the counting of continuous service of the respondent No. 3.
14. I fully agree with the submissions made by Mr. A. Ghosh, learned Counsel appearing on behalf of the petitioner company, that the decision of Workmen American Express International Banking Corporation (supra) is application in this case.
15. With regard to the decision of Reserve Bank of India and Ors., (supra) cited by Mr. Indranath Mukherjee, learned Advocate appearing on behalf of the respondent No. 3, I find that the fact of the aforesaid case was different. The appellant in that case filed an affidavit claiming that he had worked during the period from July, 1975 to July, 1976. In absence of any evidence to the contrary an inference was drawn in that case that the appellant had worked for more than 240 days from July, 1975 to July, 1976, was true. In view of the fact of the above case, which differs from the case in hand, the above decision is not applicable in the case in hand.
16. If the number of working days of the respondent No. 3 in a calendar year under the petitioner company was less than 240 days after taking into account the working days including the paid Sundays and holidays than the order of termination of the respondent No. 3 from the service of the petitioner company without issuing chargesheet might be justified.
17. In that view of the matter impugned dated July 4, 1995 passed by the respondent Tribunal (Annexure K4 to the writ application) is set aside and quashed. The matter is remitted back to the respondent Tribunal with a direction to calculate the actual number of working days of the respondent No. 3 under the petitioner company during the year 1986-87 and from September, 1987 to June, 1988 taking into consideration the actual working days and the paid Sundays and other paid holidays. On the basis of such calculation, the respondent Tribunal is directed to decide the issue involved in the matter.
18. The writ application is thus disposed of.
19. There will be, however, no order as to costs.
20. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.