Gujarat High Court
Balubha Ashabhai Manek vs Gujarat Water Supply And Sewarage Board on 6 March, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/20894/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20894 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 21570 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV Sd/-
======================================================
1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
=========================================================== BALUBHA ASHABHAI MANEK & 1 other(s) Versus GUJARAT WATER SUPPLY AND SEWARAGE BOARD & 2 other(s) =========================================================== Appearance:
MR. MUKESH T MISHRA(5900) for the Petitioner(s) No. 1,2 MR H S MUNSHAW AND MR DG CHAUHAN(218) for the Respondent(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3 RONAK D CHAUHAN(7709) for the Respondent(s) No. 1 =========================================================== CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 06/03/2020 COMMON CAV JUDGMENT
1. Rule returnable forthwith. Mr.D.G. Chauhan and Mr.H.S. Munshaw, learned advocates waives service of notice of Rule for the concerned respondents.Page 1 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT
2. With the consent of the parties, the matters are taken up for final hearing.
3. In both these petitions, under Article 226 of the Constitution of India, the petitioners have prayed for a direction that the respondents be directed to grant them the benefits of Government Resolution dated 17.10.1988 together with the arrears on the basis of the respective awards passed by the labour Court granting them the benefit of reinstatement.
4. Facts of Special Civil Application No.20894 of 2017 are as under:
4.1. The petitioners were appointed as Daily Wagers with the respondent establishment in the year 1992. On their services being terminated illegally, the petitioners raised industrial dispute which was registered as Reference (LCJ) No.60 of 1995 and Reference (LCJ) No.61 of 1995. The labour Court passed the award dated 24.6.2004, by which, it was directed that the petitioners be reinstated on their posts without back wages.
4.2. The award was challenged by the respondent - Board by filing Special Civil Application Nos.14375 and 14376 of 2004. This Page 2 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT Court, by a judgment and order dated 19.6.2016 rejected both the petitions. The petitioners were reinstated in service on 26.11.2016.
4.3. A notice was addressed by advocate of the petitioners to the respondent on 16.7.2017 asking the respondents to comply with the order of the labour Court by paying full wages from the date of the award i.e. from 24.6.2004 till 26.11.2016. The notice was responded to by the respondent holding that the petitioners are not entitled to such benefits and also the benefit of the Government Resolution dated 17.10.1988.
5. Facts of Special Civil Application No.21570 of 2017 are as under:
5.1. The petitioners joined services of the Bhanvad Panchayat in the year 1983. On termination of their services in the year 1989, the petitioners raised a dispute before the labour Court. Reference (LCB) No.219 to 226 of 1989 was registered. The labour Court passed an award dated 17.1.2000 directing the respondent to reinstate the petitioners on their original post with back wages.
5.2. The Panchayat challenged the award of the labour Court by filing Special Civil Application Page 3 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT No.6017 of 2000. By an order dated 24.8.2005, this Court set aside the order of back wages.
However, the rest of the award was not disturbed. The petitioners were reinstated on 26.11.2006. Based on the award, they have claimed the benefit of a resolution dated 17.10.1988.
6. Mr.T.R. Mishra, learned counsel for the petitioners has appeared on behalf of the petitioners in both the petitions and submitted as under:
6.1. As far as Special Civil Application No.20894 of 2017 is concerned, Mr.Mishra would submit that the petitioners were appointed in 1982 and reinstated on 26.11.2016. On reading the operative portion of the award, it was clear that the petitioners were directed to be reinstated on their original post without back wages.
The award specifically did not deny continuity of service. As far as Special Civil Application No.21570 of 2017.
6.2. Mr.Mishra would submit that the award specifically stated reinstatement with back wages. Both the awards clearly indicate Page 4 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT that for all purposes, the petitioners were required to be treated as continuous in service when the action of the employer in terminating their services was declared as illegal. He would submit that once there is an award of the reinstatement and, there is no express denial of continuity, it is inferred that the benefit of continuity has been so granted. The petitioners in both the petitions, therefore, should be treated as continuous in service since their date of initial appointment and, therefore, be entitled to the benefits of the resolution dated 17.10.1988.
7. Mr.Mishra, would rely on a decision in Special Civil Application No.7593/2004 dated 24.2.2015 and submit that within 30 days from the date of the award, the awards become enforcible, therefore, as held by the decision, the petitioners are entitled to be treated as continued in service from their initial date of appointment.
7.1. Reliance was also placed on a decision in a group of petitions being Special Civil Application No.1563 of 1992 and allied matters dated 31.3.2013 in which, this Court though Page 5 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT considering the benefits of the Government Resolution dated 17.10.1988 categorically held that in view of the decision of this Court in the case of State of Gujarat v. Mahendrakumar Bhagwandas reported in 2011(2) GLR 1290 (Letters Patent Appeal No.958 of 2001 and cognate matters, dated 18.03.2011), the petitioners were entitled to the benefits of the Government Resolution dated 17.10.1988. The decision was confirmed by the division bench and, therefore, when orders were placed on record to similarly situated employees being granted such benefits, who joined subsequent to the petitioners, there was no reason for the petitioners being denied such benefits.
7.1.1. In support of his submission, Mr.Mishra relied on the following decisions:
(1) Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. of Hon'ble Supreme Court decided on 1.1.2020 in Civil Appeal Nos.201-
202 of 2020. He relied on the relevant portion of the judgment to submit that when the labour Court awards the reinstatement, continuity of service would follow as a matter of law unless expressly denied.
Page 6 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT(2) Letters Patent Appeal No.174 of 2017 dated 11.7.2018 decided by the Division Bench of this Court in the case of State of Gujarat v. Govindbhai Ukabhai Parmar. He would submit that when there was an award of reinstatement without continuity of service, the Court relied on a decision of the Hon'ble Supreme Court in the case of Gurpreet Singh v. State of Punjab reported in 2003 SCC (L & S) 20 categorically observed that when there is specific reference regarding continuity of service, when termination has been found to be illegal and reinstatement is ordered, the petitioners are entitled to the benefit of Government Resolution dated 17.10.1988.
(3) A decision dated 03.12.2018 in Special Civil Application No.15294 of 2017 in the case of Ashwinbhai Maganbhai Bhalodiya v. State of Gujarat, wherein this Court held that once the award of the labour Court directing reinstatement is confirmed, it will be implicit in such award that continuity is granted.
(4) Vasantika R. Dalia v. Baroda Municipal Corporation reported in 1997(3) GLR 1879 also was pressed into service to submit that when the relief of reinstatement is granted and Page 7 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT continuity of service is not specifically denied, the employer cannot deny the benefit of continuity of service.
(5) Reliance was also placed in the decision of the Director General ICMR v. D.K. Jain reported in 2007 AIR SCW 2408 wherein the concept of "reinstatement was explained."
(6) He also placed reliance on a decision of the Division Bench of this Court in Letters Patent Appeal No.306 of 2008 dated 03.05.2018 in the case of Zonal Manager, State Bank of India v. Modi Rajeshkumar Shantilal for interpretation of Section 25(B) of the Industrial Disputes Act.
(7) He also placed reliance on decisions of Hon'ble Supreme Court in the case of Gauri Shanker v. State of Rajasthan reported in 2015(12) SCC 754 and Deepali Gundu Surwase v. Kranti Junior Ahyapak Mahavidyalaya reported in 2013 (10) SCC 324.
(8) He also placed reliance on a decision in the case of Brijesh Kantilal Somaiya v. Chief Officer of Division Bench, this Court dated 12.03.2018 in Letters Patent Appeal No.735 of 2017 and other allied matters, wherein, all these Page 8 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT decisions have been considered and when in the facts of those cases, the learned Single Judge had granted continuity of service, the Division Bench had categorically held that once retrenchment is proved to be contrary to law, continuity automatically must follow.
8. For the respondent in the respective petitions, Mr.D.G. Chauhan, learned counsel and Mr.H.S. Munshaw have argued.
9. Mr.D.G. Chauhan, learned counsel in Special Civil Application No.20894 of 2017 submitted that when the award of the labour Court is read, it is evident that the reference was only with respect to the petitioners being granted reinstatement. There was no relief sought for the benefits of the Government Resolution dated 17.10.1988. It is well settled that no relief can be granted beyond the terms of reference.
9.1. That the petitioners had worked only for 17 months and 25 months respectively. After the award dated 24.6.2004, they were reinstated in the year 2016. They were out of service for a long period of 22 years and, therefore, cannot get the benefit of that period and be granted the benefit of Government Resolution dated Page 9 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 17.10.1988.
9.2. Even the issue raised before the labour Court would suggest that dispute was only with regard to the termination. The award expressly denied continuity of service. It is now not open for the petitioners to interpret the award and submit that there is implicit continuity. They have not prayed for modification of the award. Mr.Chauhan, would distinguish the judgments cited by Mr.Mishra submitting that the judgments would not apply to the case on hand, namely those in Special Civil Application No.7593 of 2004 and Special Civil Application No.1563 of 1992.
9.3. Relying on Government Resolution dated 17.10.1988, he would draw the attention of the Court to the condition No.3 which specifically stated that for counting the period of service, the number of actual working days have to be taken into account and being not in service for a period of 22 years from 1994 to 2016, the benefit of the Government Resolution dated 17.10.1988 cannot be granted.
9.4. Mr.Chauhan, in support of his version, relied on a decision of Division Bench of this Page 10 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT Court in Letters Patent Appeal No.492 of 2016 dated 12.7.2016 in the case of Executive Engineer v. Dudabhai Khemabhai Makwana. Mr.Chauhan has also relied on following decisions:
(1) Decision of Hon'ble Supreme Court in the case of Rajasthan S.R.T.C. v. Ladulal Mali reported in 1996(8) SCC 37 and submitted that the executing Court cannot go behind the decree and, therefore, once there is no express benefit of continuity of service, petitioners cannot claim continuity.
(2) He relied on A.P. SRTC v. Narsagoud reported in 2003(2) SCC 212 (Para 9 and 10) and Andhra Pradesh State Road Transport Corporation v. Abdul Kareem reported in 2005(6) SCC 36 to submit that once there is an award of reinstatement without continuity of service, that period cannot be treated to be continuous so as to be made eligible for the benefit of Government Resolution dated 17.10.1988.
(3) Reliance was placed on the decision of Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation v.
Page 11 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENTShyam Biharilal Gupta reported in 2005(7) SCC 406 to submit that when there is no back wages, that period cannot be treated as continuous.
(4) In accordance with the decision of State of Gujarat v. PWD Employees Union reported in 2013 SCC 12 only when actual number of working days are to be taken same cannot apply to the benefit of the petitioners.
(5) The judgment of Gurpreet Singh v. State of Punjab reported in 2002 SCC (9) 492 is not binding because it is only an order.
(6) He has also relied on a decision of Hon'ble Supreme Court in the case of The State of Gujarat v. PWD & Forest Employees Union dated 15.2.2019 in Civil Appeal Nos.1684-1686 of 2019 and submitted that actual number of working days are to be counted.
10. Mr.Munshaw, learned counsel would also support the submission of Mr.Chauhan and further add that the petitioners of Special Civil Application No.21570 of 2017 are not entitled to the benefit of Government Resolution dated 17.10.1988.
Page 12 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT10.1.Relying on the affidavit, he would submit that the petitioners were engaged for scarcity relief and were not a permanent employee. He also relied on a decision dated 12.7.2016 of Division Bench in Letters Patent Appeal No.492 of 2016 produced together with the affidavit-in- reply. The petitioners were out of employment from 1989 to 2016 and such benefit cannot be included. He further said that the judgments relied upon by Mr.Mishra annexed with the petition i.e. Special Civil Application No.7588 of 2004 and in Special Civil Application No.1162 of 2005 confirmed by the Division Bench in Letters Patent Appeal No.553 of 2017 would not apply.
10.2.Considering the submissions made by the respective counsels, reading both the awards, which are the subject matter of interpretation before this Court, as far as the award in Special Civil Application No.20894 of 2017 is concerned, the same is with regard to the reinstatement without back wages. In Special Civil Application No.21570 of 2017, it is with regard to the reinstatement with back wages. True it is Page 13 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT that there is no mention in the aforesaid awards about continuity of service. Reading of the awards would indicate that the petitioners had approached the labour Court on their services being terminated in breach of the provisions of Section 25(F) of the Industrial Disputes Act. Specific findings of fact have been recorded in the awards that the petitioners had completed 240 days in each year of service prior to their termination. This mandated the respondents to follow the provisions of Section 25(F) of the Act. It is in these facts that the labour Court directed the respondent - employer to reinstate the workmen.
10.3. The concept of reinstatement has been the subject matter of interpretation in the decision of the Hon'ble Supreme Court of D.K. Jain (Supra) wherein the Hon'ble Supreme Court held as under in paragraph No.11.
11. The expression `reinstatement' has been defined in `Advanced Law Lexicon' by P. Ramanatha Aiyar, (at page 4030) to mean:
"Reinstatement means that a man is put back in his job. Reinstatement can only Page 14 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT arise if a man is dismissed or removed from service or if otherwise his service has been terminated and he is brought back to service. Hemanta Kumar Bhattacherjee v. Union of India, AIR (1958) Cal. 239, 241 [Constitution of India, Art. 311].
Therein it is further stated:
"The word `reinstatement' in the context of Rule 16.5 of the Punjab Police Rules can refer only to the resumption of service for the purpose of grant of increments. The said rule has no bearing on qualifying service for compulsory premature retirement. Chamba Singh v. State of Punjab, AIR (1997) SC 2455, Service Laws."
Based on its distinction in advance law lexicon what is made out is that reinstatement can only arise if there is a dismissal or removal. The termination from service is set aside.
10.4.In the case of Gurpreet Singh (Supra), the Hon'ble Supreme Court was faced with a situation where on a suit being filed challenging the order of termination, the Court finds that the termination was bad, the decree was passed of reinstatement. However, continuity of service was also denied. In paragraph No.3 of the decision, the Hon'ble Supreme Court has held as under: -
Page 15 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT"3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside the part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above."
It was categorically held that once there is reinstatement in service and the order of termination is set aside, continuity of service has always to be inferred.
10.5.This Court in the case of Vasantika R. Dalia (Supra) where the petitioner was terminated and on a reference made to the labour Court, the labour Court had granted reinstatement without back wages. The employer had come to the Court challenging the order of the labour Court. The petition was summarily dismissed.
Page 16 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENTEven the employees' petition, claiming back wages was also not entertained. Since the order of reinstatement was not being implemented, the workmen had to come to the Court by filing a contempt petition. The petitioner was reinstated but the wages for the period of delay were paid. Nothing was said in the award in positive terms with regard to continuity of service. The Court held that once a relief of reinstatement is granted and back wages have been denied, there is no relief denying continuity of service. It is implicit in the award that continuity has been granted.
10.6.In the two decisions (1) Nandkishore Shravan Ahirrao v. Kosan Industries (P) Ltd. (Supra) by Hon'ble Supreme Court & another dated 11.7.2018 in Letters Patent Appeal No.174 of 2017 decided by the Division Bench of this Court in the case of State of Gujarat v. Govindbhai Ukabhai Parmar (Supra), this Court in Special Civil Application in the case of Ashwinbhai Maganbhai Bhalodiya (Supra) also took a similar view and the Court held that the entire service right from the initial date of appointment needs to be granted giving Page 17 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT the benefit of Government Resolution dated 17.10.1988. Paragraph Nos.4 to 6 of order dated 03.12.2018 is Special Civil Application No.15294 of 2017 read as under:
"4. Learned advocate for the petitioner submitted that once the Labour Court had directed the reinstatement of the petitioner and the said judgment and award was confirmed by the High Court, implicit in such direction would be the grant of continuous service. It was submitted that the continuity of service is not considered for the petitioner. The reasoning of the authorities, as submitted by the learned advocate for the petitioner, was erroneous when five years period is calculated from 05.11.2011 and not from the date of joining which was required to be considered as continuity was granted.
4.1 On the other hand, learned Assistant Government Pleader wanted to submit that though the Labour Court had directed reinstatement of the petitioner and pursuant to which the petitioner was reinstated in service, there was no express order by the Labour Court to treat the services of the petitioner continuous. It was therefore sought to be justified that the five years period was considered accordingly and the benefits under resolution dated 17.10.1988 could be extended on that basis only.
5. The Labour Court in its judgment and award though directed reinstatement of the petitioner, did not expressly confer the benefits of continuity of service. Therefore, the moot question is whether the services Page 18 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT of the petitioner could be treated as continuous and on that basis the benefits of resolution dated 17.10.1988 including the benefits of pay fixation etc. could be granted to the petitioner. 5.1 In Nanjibhai Madhabhai vs. State of Gujarat, being Special Civil Application No.2192 of 2017, decided as per the judgment dated 24.07.2018, the very question was considered namely when the Labour Court did not explicitly mentioned continuity of service but the reinstatement was directed, whether the direction of the Labour Court would meant grant of continuity of service.
5.2 In Vasantika R. Dalia Vs. Baroda Municipal Corporation [1998(2) LLJ 172], this Court was posed to interpret the judgment and award of the Labour Court which granted the relief of reinstatement to the workmen. The relief of backwages was denied and the relief of continuity of service was not denied specifically and that in the relief of reinstatement granted, the word 'continuity' was not mentioned. The Court observed to lay down that "It may be straightaway observed that once the relief of reinstatement is granted, the continuity of service is a direct consequence rather inherent in the relief of this nature". It was held that when the relief of reinstatement was granted and the continuity of service was not specifically denied, the workman has to be relegated to the same position as was held by it at the time of termination. When the order of termination was found to be void, the petitioner, it was held, would be entitled to hold the relief of reinstatement with continuity where there was no mention of specific denial to such continuity.
5.3 The Supreme Court in Gurpreet Singh Vs. State of Punjab and others Page 19 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT [2002 (92) FLR 838], held that once the plaintiff was directed to be reinstated in service upon setting aside of the order of termination, continuity of service could not be denied. The Court observed that the case was not of fresh appointment but it was one of reinstatement and that being the position, it was observed that the High Court was in error in denying the continuity of service.
5.4 When the award of the Labour Court had not expressly denied the continuity is to be interpreted as per the principles of law laid down by the Supreme Court in Gurpreet Singh (supra), the concept of continuity could not be distinguished for the purpose of granting any other service benefits.
Learned Assistant Government Pleader made a failed attempt to submit that the continuity for the purpose of granting benefits under Resolution dated 17.10.1988 may be treated differently. Any such distinction would be artificial distinction.
5.5 Thus and therefore, even though the judgment and award of the Labour Court had not expressly granted the continuity, at the same time it did not deny the continuity in any expressed terms. The grant of continuity would have to be read with the order of reinstatement. The petitioner would be entitled to be treated continuous in service upon reinstatement.
Resultantly, the petitioner would be entitled to be granted the benefits of Resolution dated 17.10.1988 accordingly by reckoning his services as continuous from the date of his initial appointment.
6. In view of above, the stand of the respondents in calculating five years and the continuity of service of the petitioner with effect from the date of Page 20 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT judgment and award of the Labour Court and to treat the completion of five years as on 04.11.2016 for extension of benefits under Resolution dated 17.10.1988 is based on erroneous interpretation and application of the judgment and award of the Labour Court. Once the continuity would flow from the judgment and award, all the benefits to the petitioner including pay fixation would be granted to the petitioner in consideration of such continuity from the beginning of the requisite completion of length of service for the purpose of resolution dated 17.10.1988 would have to be counted in that way."
10.7.By the decision dated 11.7.2018, the Division Bench of this Court in the case of State of Gujarat v. Govindbhai Ukabhai Parmar rendered in Letters Patent Appeal No.174 of 2017 relying on the decision of Hon'ble Supreme Court in the case of Gurpreet Singh (Supra) held as under:
"8. The undisputed fact in the present appeal is that the respondent workman was terminated from the service in the Year 1988 and his termination was quashed and set aside by the award dated 12.01.2007. The Labour Court had directed the present appellants to reinstate the present respondent workman without backwages on his original post, however, no specific reference was made regarding continuity of service. The Apex Court in the case of Gurpreet Singh (Supra) has specifically observed that once the termination is setaside, the workman will be entitled for continuity of service Page 21 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT since the same is not fresh appointment, but it is a case of reinstatement. Accordingly, the workman was reinstated by the order dated 06.10.2008 on his original post, and thereafter, also, it is undisputed fact he was conferred the benefit of regular payscale till he retired on 13.11.2013 after rendering 5 years of service.
9. It is no more resintegra that, as per Resolution dated 17.10.1988, the workman would be entitled to pension and other retirement benefits after completion of 10 years of service. In present case, the termination of the workman is found to be illegal and he was reinstated in service and was also paid regular pay scale. Thus, he was forced to remain unemployed for the interregnum period. The Labour Court, after examining the documents on record, has given a specific finding that the workman had worked for 12 years before his termination and he had also completed 240 days service. Thereafter, he was reinstatement on 06.10.2008 and till his retirement on 30.11.2013, he had completed 5 years. The learned Single Judge has allowed the writ petition and has only directed the Pension Fixation Authority to pass appropriate orders of fixation in accordance with law and it is further directed to forward the papers in that regard to the Pension Sanctioning Authority, who after receipt of the same, shall pass appropriate orders. The learned single judge has only given a direction to the appellants to pass appropriate orders to fix the pension in accordance with law. This Court does not find any illegality or infirmity in such directions of passing appropriate orders for fixing the pension."
10.8.Even the Hon'ble Supreme Court in the Page 22 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT case of Nandkishore Shravan Ahirrao (Supra) held that when there is reinstatement by an award of the labour Court, continuity of service would follow as a matter of law.
11. When the conjoint purview of these decisions is undertaken, what clearly emerges is that in a situation where the labour Court awarded reinstatement with or without back wages, implicit it is, in reading the awards that the labour Court has come to the conclusion that the termination of the petitioner was ineffective and since it was in violation of provisions of the Industrial Tribunal Act, the reinstatement was directed. Continuity, would, therefore naturally follow. Once, continuity is read into the awards passed by the labour Court, the entire period of service right from the date of initial appointment, till the date of reinstatement has to be treated as continuous and uninterrupted.
12. In the case of the petitioners in both these petitions, the contentions raised by the learned counsels for the respective parties that the petitioners have been out of service in the interregnum for a period of 22 years and 7 Page 23 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT years respectively pales into insignificance, once continuity has been so implicitly granted by the awards of the labour Court. Continuity of service has to be read in such award as so held by the decisions relied and referred hereinabove.
13. The judgments cited by Mr.D.G. Chauhan in the case of Rajasthan S.R.T.C. (Supra) and A.P. SRTC (Supra) would not apply to the facts of the present case. In these decisions, the terminations were based on the misconduct of such employees. They were found to be absent from service and, their services were terminated. On reinstatement, when it came for consideration whether their period of absence are to be treated for benefit of increment, it was in such context that the Hon'ble Supreme Court observed in the negative. It was not the case of termination simplicitor in violation of the provisions of Section 25(F) of the Act. The judgments would, therefore, not be applicable to the case on hand.
14. The concept of an executing Court going behind the decree, therefore, also in no manner be found applicable.
Page 24 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT15. Coming to the alternative argument of learned counsel Mr.Chauhan and Mr.Munshaw on interpreting the Government Resolution dated 17.10.1988 and contention that since for a long period they were out of service, such period cannot be so counted. This submission also deserves to be rejected.
16. The Government Resolution dated 17.10.1988 for the purposes of granting benefits for computing the period of treating a workman in continuous service falls back to support its case on the provisions of Section 25(B) of the Industrial Tribunal Act. Reading Section 25(B) which is reproduced hereunder would indicate that the workman shall be deemed to be in continuous service for the period if his service is uninterrupted. If there is interruption for no fault of his, such interruption cannot be termed as a `break in service.' Keeping these provisions in mind, therefore, which form the basis of granting the benefits of Government Resolution dated 17.10.1988, the petitioners have to be treated to be in continuous service from their initial dates of appointment and granted the benefits of the Government Resolution dated 17.10.1988.
Page 25 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT"Sec.25-B. Definition of continuous service.- For the purposes of this Chapter-
i. 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; ii.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 calender 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 calender months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case.
Explanation :- For the purpose 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 Page 26 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 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."
17. The decision in the case of Dudabhai Khemabhai Makwana (Supra) of Division Bench in Letters Patent Appeal No.492 of 2016 set out by Mr.Munshaw and Mr.Chauhan is therefore not applicable.
18. The Division Bench of this Court in the case of Brijesh Kantilal Somaiya (Supra) had an occasion to deal with the decisions rendered in the case of Gauri Shanker (Supra) and Deepali Gundu Surwase (Supra) in context when there is illegal termination, continuity of service can be denied. The relevant portion (Paragraph Nos.9 to 9.7) of the decision dated 12.03.2018 in Letters Patent Appeal No.735 of 2017 read as under:
"9 Heard learned counsels for the parties and perused the record of case.
9.1 In the case of Hari Nandan Prasad [supra], the Apex Court observed as under:
"It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied Page 27 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious."
9.2 With regard to applicability of law laid in the case of Umadevi vs. Secretary, State of Karnataka [(2006)4 SCC 1], applicability of above decision of the Constitution Bench of the Apex Court was considered in the case of Maharashtra State Road Transport case [AIR 2007 SC 2776] that decision in the case of Umadevi [supra] would not be binding to industrial or labour courts and in the context of submissions made by learned counsel for the employer referring to another judgment in the case of U.P. Power Corporation vs. Bijli Mazdoor Sangh & Ors. (2007) 5 SCC 755 whereby law laid down in the case of Umadevi [supra] equally applies to Industrial Tribunal and Labour Court, the Apex Court in para 22 relied on underline message contained in Umadevi [supra] to the effect that regularization of a dailywager, who has not been appointed after undergoing the proper selection procedure etc. was impermissible as it was violative of Article 14 of the Constitution of India and this principle predicated on Article 14 would apply to the industrial tribunal as well. However, any such underline message in the case of Umadevi would not deter the Industrial Tribunal / Labour Court from issuing such direction, which the industrial / labour courts Page 28 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT otherwise possess, having regard to the provisions of the ID Act, 1947 specifically conferring such powers. Then in the context of unfair practice under Items 5 to 9 of the Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 [MRTU and PULP Act] pari materia of which Schedule V of ID Act, 1947 under Section 2(ra) of ID Act, 1947 pertaining to Unfair Labour Practices, law laid down about powers of the Industrial Court of first in deciding the complaint and issuing direction so conferred under Sections 30 and 32 of the MRTU & PULP Act were wider and affirmative. Barring the power to direct the authorities to create posts even issuance of order of permanency of workers, who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV of the MRTU & PULP Act held to be unaffected by Umadevi [supra] provided unfair labour practice on the part of the employer is established. Thereafter, in para 29, the Apex Court reconciled the law laid down in both the cases U.P. Power Corporation [supra] and Umadevi [supra] and held that law laid down in those cases is not contradictory to each other, but at the same time powers that may be exercised by the Industrial / Labour courts are subject to exercise of sound discretion in a fact situation for the relief in question, the Apex court found qua appellant No.2, who was not given benefit of circular dated 06.05.1987 though similarly situated employees were given the benefit including regularization, and he was declared to be entitled to receive such benefits.
9.3 In another decision on the same line in the case of Bharat Sanchar Nigam Limited [supra], termination of service of workman was found without compliance of Section 25F of the ID Act, 1947 it was held that principle of grant of reinstatement with full backwages, when termination was found illegal ordinarily applies but such principal is not to be applied mechanically in all cases and may be applied where services of regular Page 29 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT / permanent workman are terminated illegally, malafide or by way of victimization, by applying unfair labour practice, but in case of services of dailywagers who are terminated illegally for some procedural defect monetary compensation will be just relief and not reinstatement with backwages as such employee has no right to seek regularization and lumpsum compensation can be awarded depending on facts and circumstances of each case.
9.4 Reliance is also placed on the decision of the Apex Court in the case of Sudarshan Rajpoot [supra] where the Apex Court agreed with law laid down in the case of Hari Nandan Prasad [supra] and also in the case of Maharashtra State Road Transport Corporation [supra] and relief of reinstatement, backwages and continuity of service would follow only in the cases where unfair labour practice is established on the part of the employer. In this judgment, the Apex Court almost considered all such decisions on the point right from Bharat Bank Ltd. v. Employees [AIR 1950 SC 188] to Hari Nandan Prasad [supra]. The Apex Court mainly concerned with the relationship between employer and employee whether it was permanent or contractual and it was found that the workman was working on permanent basis and was not contractual employee and junior working on permanent basis were continued and permanent basis and further considering the provisions of U.P. Industrial Disputes Act, 1947 and Section 6N providing conditions precedent to retrenchment of workman and also addressed to unfair practice and scope of judicial review and burden of proof, has held that it was an employer to justify termination of service. In paras 25, 25.1 and 25.2 of the above judgment the Apex Court referred to the case of Hari Nandan Prasad [supra] and noticed as under:
"25 This Court in the later judgment in the case of Hari Nandan Prasad v.Page 30 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT
Food Corporation of India, after adverting to the law laid down in U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh and Maharashtra SRTC wherein Uma Devi's case is adverted to in both the cases, held that on a harmonious reading of the two judgments, even when there are posts available, in the absence of any unfair labour practice the Labour Court cannot give direction for regularisation only because a worker has continued as daily-wage worker/ad hoc/temporary worker for number of years. Further, such a direction cannot be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules.
25.1 It was held at para 32 in Hari Nanda Prasad case as under:"
32. However, the Court in Maharashrtra SRTC case also found that the factual position was different in the case before it. Here the post of cleaners in the establishment were in existence. Further, there was a finding of fact recorded that the Corporation had indulged in unfair labour practice by engaging these workers on temporary/casual/daily-wage basis and paying them paltry amount even when they were discharging duties of eight hours a day and performing the same duties as that of regular employees."
25.2 Further, Hari Nandan Prasad [(2014)7 SCC 190] referred at para 36, LIC v. D.J.Bahadur [(1981)1 SCC 315] is extracted a under: [Hari Nandan Prasad case] "36......"22. The Industrial Disputes Act is a benign measure which seeks to preempt industrial tensions, provide the mechanics of dispute resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be Page 31 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT dissipated in counterproductive battles and the assurance of industrial justice may create a climate of goodwill." [D.J.Bahadur case, SCC P.334, per Krishna Iyer, J.] In order to achieve the aforesaid objectives, the Labour Courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice. Way back in the year 1950 i.e. immediately after the enactment of Industrial Disputes Act, in one of its first and celebrated judgment in the case of Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. [AIR 1950 SC 188] this aspect was highlighted by the Court observing as under:
[AIR P.209, PARA 61] "61.......In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace."
9.5 The Apex Court, referring to its earlier decision in the case of Deepali Gundu Surwase [supra] with respect to reinstatement, backwages and other consequential benefits to be awarded in favour of workman, in para 32 held as under:
"32 Further, it is important for us to examine another aspect of the case on hand with respect to reinstatement, backwages and the other consequential Page 32 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT benefits to be awarded in favour of the appellant workman. In the case of Deepali Gundu Surwase [supra] v.
Kranti Junior Adhyapak Mahavidyalaya ](2013)10 SCC 324], after referring to three Judge Bench Judgments with regard to the principle to be followed by the Labour Courts / Industrial Tribunals to award backwages if order of termination / dismissal is set aside, law has been laid down in this regard by this Court as under : [SCC p.344, para 22] "22 The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back Page 33 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. Therefore, keeping in mind the principles laid down by this Court in the above case, we are of the opinion that the appellant workman should be paid full backwages by the respondent Corporation."
9.6 That law on sections 2(oo), 25F and 25B is no more res integra in view of judgment of the Apex Court in the case of Mohan Lal v. The Management of M/s. Bharat Electronics Ltd. [AIR 1981 SC 1253] in which the Apex Court extensively considered about the same. Paras 6 to 14 of the above judgment, read as under:
"6 If on October 19,1974, the appellant was not on probation and assuming maximum in favour of the respondent that he was a temporary employee, could termination of his service. even according to the respondent, not as and by way of punishment but a discharge of a temporary servant, constitute retrenchment within the meaning of section 2(oo), is the core question. Section 2(oo) reads as under:
"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 Page 34 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 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
(c) termination of the service of a workman on the ground of continued ill health."
7 Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, 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, and termination of the service of a workman on the ground of continued ill- health. It is not the case of the respondent that termination in the instant case was a punishment inflicted by way of disciplinary action. If such a position were adopted, the termination would be ab initio void for violation of principle of natural justice or for not following the procedure prescribed for imposing punishment. It is not even suggested that this was a case of voluntary retirement or retirement on reaching the age of superannuation or absence on account of continued ill-health. The case does not fall under any of the excepted categories. There is thus termination of 525 service for a reason other than the excepted category. It would indisputably be retrenchment within the meaning of the word as defined in the Act. It is not necessary to dilate on the point nor to refer to the earlier decisions of this Court in view of the later two pronouncements of this Court to both of Page 35 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT which one of us was a party. A passing reference to the earliest judgment which was the sheet anchor till the later pronouncements may not be out of place. In Hariprasad Shivshankar Shukla v. A.D. Divikar, 1957 SCR 121 :(AIR 1957 SC 121] after referring to Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, 1956 SCR 872 : (AIR 1957 SC 95) a Constitution Bench of this Court quoted with approval the following passage from the aforementioned case (at page 126 of AIR):
"But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplus age and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment."
This observation was made in the context of the closure of an undertaking and being conscious of this position, the question of the correct interpretation of the definition of the expression `retrenchment' in section 2(oo) of the Act was left open. Reverting to that question, the view was reaffirmed but let it be remembered that the two appeals which were heard together in Shukla's case were cases of closure, one Barsi Light Railway ompany Ltd., and another Shri Dinesh Mills Ltd., Baroda. With specific reference to those cases, in State Bank of India v. Sundara Money, (1976)3 SCR 160 :
(AIR 1976 SC 1111) Krishna Iyer, J. speaking for a three Judge bench interpreted the expression `termination .... for any reason whatsoever' as under (at page 1114 of AIR):
"A breakdown of S. 2(oo) unmistakably expands the semantics of retrenchment. `Termination...for any reason whatsoever' are the key words.Page 36 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT
Whatever the reason, every termination spells retrenchment. So, the sole question ishas the employee's service been terminated ? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master of the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25F and section 2(oo). Without speculating on possibilities, we may agree that `retrenchment' is no longer terra incognita but area covered by an expansive definition. It means `to end, conclude, cease'. In the present case the employment ceased, concluded, ended on the expiration of nine days automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from section 25F(b) is inferable from the proviso to section 25F(1). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient."
It would be advantageous to refer to the facts of that case to appreciate the interpretation placed by this Court on the relevant section. State Bank of India appointed the respondent by an order of appointment which incorporated the two relevant terms Page 37 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT relied upon by the Bank at the hearing of the case. They were: (I) the appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefor at the Bank's discretion; (ii) the employment, unless terminated earlier, will automatically cease at the expiry of the period i.e. 18.11.1972. It is in the context of these facts that the Court held that where the termination was to be automatically effective by a certain date as set out in the order of appointment it would nonetheless be a retrenchment within the meaning section 2(oo) and in the absence of strict compliance with the requirements of section 25F, termination was held to be invalid. Continuing this line of approach, in Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, Orissa and Ors., a bench of three judges examined the specific contention that the decision in Sundara Money's case runs counter to the construction placed on that section by a Constitution Bench and, therefore, the decision is per incuriam. This Court analysed in detail Shukla's case and Sundara Money's case and ultimately held that the Court did not find anything in Shukla's case which is inconsistent with what has been held in Sundara Money's case. In reaching this conclusion it was observed that in Shukla's case the question arose in the context of closure of the whole of the undertaking while in Hindustan Steel's case and Sundara Money's case the question was not examined in the context of closure of whole undertaking but individual termination of service of some employees and it was held to constitute retrenchment within the meaning of the expression. This question again cropped up in Santosh Gupta v. State Bank of Patiala.
Rejecting the contention for reconsideration of Sundara Money's Page 38 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT case on the ground that it conflicted with a Constitution Bench decision in Shukla's case and adopting the ratio in Hindustan Steel's case that there was nothing in the two aforementioned decisions which is inconsistent with each other and taking note of the decision in Delhi Cloth and General Mills Ltd. v. Shambu Nath Mukerjee wherein this Court had held that striking off the name of a workman from the rolls by the management was termination of service which was retrenchment within the meaning of section 2(oo), the Court held that discharge of the workman on the ground that she had not passed the test which would enable her to obtain confirmation was retrenchment within the meaning of section 2(oo) and, therefore, the requirements of section 25F had to be complied with. It was pointed out that since the decision in Shukla's case, the Parliament stepped in and introduced section 25FF and section 25FFF by providing that compensation shall be payable to workman in case of transfer or closure of the undertaking, as if the workmen had been retrenched. The effect of the amendment was noticed as that every case of termination of service by act of employer even if such termination was as a consequence of transfer or closure of the undertaking was to be treated as `retrenchment' for the purposes of notice, compensation, etc. The Court concluded as under:
"Whatever doubts might have existed before Parliament enacted Sections 25FF and 25FFF about the width of section 25F there cannot be any doubt that the expression `termination of service for any reason whatsoever' now covers every kind of termination of service except those not 528 expressly Page 39 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT provided for by other provisions of the Act such as sections 25FF and 25FFF." Reverting to the facts of this case, termination of service of the appellant does not fall within any of the excepted, or to be precise, excluded categories. Undoubtedly therefore the termination would constitute retrenchment and by a catena of decisions it is well settled that where prerequisite for valid retrenchment as laid down in section 25F has not been complied with, retrenchment bringing about termination of service is ab initio void. In State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors., this Court held that failure to comply with the requirement of section 25F which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative. In other words, it does not bring about a cessation of service of the workman and the workman continues to be in service. This was not even seriously controverted before us.
10 It was, however, urged that section 25F is not attracted in this case for an entirely different reason. Mr. Markendaya 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:
"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 Page 40 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 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'. It reads as under;
"25B (1) a workman shall be paid 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;
(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 Page 41 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 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) ninetyfive 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 laidoff 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;
(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. Markendaya contended that clauses (I) and (2) of section 25B provide for two different contingencies and that none of the Page 42 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT clauses is satisfied by the appellant. He contended that subsection (I) provides for uninterrupted service and subsection (2) comprehends a case where the workman is not in continuous service. The language employed in subsections (1) and (2) does not admit of this dichotomy. Subsections (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. Subsection (1) provides a deeming fiction in that where a workman is in service 531 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 to any fault on the part of the workman, are known hazards and there are bound to be interruptions on that account. Subsection (I) 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 Subsection (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a Page 43 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT workman is not in continuous service within the meaning of subsection (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. Subsection (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in subsection (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 subsection (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 subsection (2)
(a) that the workman should be in service for a period of 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 subsection (1) his case would be governed by subsection (1) and his case need not be covered by subsection (2). Subsection (2) envisages a situation not governed by subsection (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 subsection 2(a) it is necessary to determine first the relevant date, i.e., the date of termination of service Page 44 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 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 subsection 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 subsection (2) of section 25B the workman must be shown to be in continuous service for a period of one year would render subsection (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumption. The contention must first be negatived on a pure grammatical construction of subsection (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render subsection (2) otiose. The language of subsection (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. Markandaya referred to some authorities, we will briefly notice them.
13 In Sur Enamel and Stamping Works (plaintiff) 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 Page 45 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 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 workmen 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 subjectmatter of amendment by the Industrial Disputes (Amendment) Act, 1964. Section 2(eee) was deleted and section 25B was amended. Prior to its amendment by the 1964 amendment Act, section 25B read as under:
"For the purposes of ss. 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 and Ors. v. Central Government IndustrialcumLabour 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 Page 46 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT 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 534 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 25B(2) comprehends a situation where a workman is not in employment for a 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. [emphasis supplied] 9.7 The above judgment still holds the field and the Apex Court reiterated the above, in the case of Surendranagar District Panchayat v. Dahyabhai Amarsinh [(2005)8 SCC 750] and Gauri Shanker [supra]. In the case of Gauri Shanker [supra], the Apex Court revisited all earlier decisions in the cases of [1] Jasmer Singh v. State of Haryana [(2015)4 SCC 458], [2] Gauri Shanker v. State [2014 SCC OnLine Raj 936], State of Rajasthan v. Gauri Shanker [WP (C) No.4253 of 2002, order dated 18.11.2013], [4] Harjinder Singh v. Punjab State Warehousing Page 47 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT Corpn. [[(2010)3 SCC 192], [5] Madan Pal Singh v. State of U.P. [[(2000)1 SCC 683], [6], Samishta Dube v. City Board, Etawah [(1999)3 SCC 14], [7] H.D.Singh v. RBI [(1985)4 SCC 201], [8] Gopal Krishnaji Ketkar v. Mohd. Haji Latif [AIR 1968 SC 1413], [9] Biltu Ram v. Jainandan Prasad [Civil Appeal No.941 of 1965], [10] Syed Yakoob v. K.S.Radhakrishnan [AIR 1964 SC 477], [11] State of Mysore v. Workers of Gold Mines [AIR 1958 SC 923] and held that nonproduction of muster rolls by the employer, adverse inference can be drawn and that scope of judicial review i.e. interference under Article 226 and 227 of the Constitution of India, High Court erred in interfering with the award of reinstatement and future salary. In the facts of these appeals also, findings of the Labour Court are supported by evidence with sufficient and cogent reasons and the writ court had no reason and material on record to persuade and convince the this court to differ with and set aside the findings of the Labour Court. Once such findings of the Labour Court are held not to be interfered with, consequently taking away continuity and/or backwages by the learned Single Judge is not sustainable. The Apex Court in paras 20, 22, 23 and 24 held as under:
"20 It is not in dispute that the workman was employed with the respondent Department in the year 1987 and on the basis of material evidence adduced by both the parties and in the absence of the non- production of muster rolls on the ground that they are not available, which contention of the respondent Department is rightly not accepted by the Labour Court and it has recorded the finding of fact holding that the workman has worked from 1.1.1987 to 1.4.1992. The Labour Court has drawn adverse inference with regard to non production of muster rolls maintained by them, in this regard, it would be useful to refer to the judgment of this Page 48 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT Court in the case of Gopal Krishnaji Ketkar v. Mohd Haji Latif & Ors. [AIR 1968 SC 1413] wherein it was held thus: [AIR p.1416, para 5] :
"5. .........Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi [(1916017)44 IA 98], Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."Page 49 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT
This passage was cited with approval by this Court in a recent decision Biltu Ram & Ors. v.
Jainandan Prasad & Ors. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh [(191415) 42 IA 202] : [Investigating Agency p.206] "But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents." 21 xxx 22 The learned single Judge of the High Court has exceeded his jurisdiction under Articles 226 and 227 of the Constitution of India as per the legal principles laid down by this Court in the case of Harjinder Singh [(2010)3 SCC 192] wherein this Court has held thus : [SCC p.205, para 21]:
"21 Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted Page 50 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to
(e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues.
More than 41 years ago, Gajendragadkar, J, opined that:
"10 the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State"
State of Mysore v. Workers of Gold Mines [APR 1958 SC 923]"
The said principle has been reiterated by this Court in Jasmer Singh v. State of Haryana [(2015)4 SCC 458].
24 Therefore, in view of the above said case, the learned single Judge in exercise of its powers under Articles 226 and 227 of the Constitution of India erroneously interfered with the award of reinstatement and future salary from the date of award till date of reinstatement as rightly passed by the Labour Court recording valid and cogent reasons in answer to the points of dispute holding that the workman has worked from 1.1.1987 to 1.4.1992 and that noncompliance of the mandatory requirements under sections 25F, 25G and 25H Page 51 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT of the Act by the respondent Department rendered its action of termination of the services of the workman as void ab initio in law and instead the High Court erroneously awarded a compensation of Rs.1,50,000/- in lieu of reinstatement. The learned single Judge and the Division Bench under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down in catena of cases by this Court."
19. Highlighting the judgments of the Hon'ble Supreme Court in the case of Deepali Gundu Surwase (Supra) where this Court had an occasion to trace the history of the decisions, the reproduction was made. The Division Bench of this Court, looking to the relevant portion of the decision of Deepali Gundu Surwase (Supra) held that Section 25(B) introduces a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Section 25(B).
20. Considering the decision in the case of Deepali Gundu Surwase (Supra), it is evident that the Hon'ble Supreme Court in Paragraph No.38 culled out the proposition based on the earlier decisions and held that when there is a wrongful termination, reinstatement with back Page 52 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020 C/SCA/20894/2017 CAV JUDGMENT wages and continuity is a normal way. The Court specifically held that the observations made in J.K. Synthetics Ltd. v. K.P. Agarwal reported in 2007(2) SCC 433 that on reinstatement, the employee cannot claim continuity of service as of right, is contrary to the ratio of the judgments of three Judges bench.
21. Keeping this position of law in mind, it is explicitly clear that the petitioners are the beneficiaries of the award of the labour Court and implicitly the benefit of continuity of service has to be read in such awards. Their past services have to be treated as services for the purposes of granting them the benefits of Government Resolution dated 17.10.1988 and their tenure during which they were out, cannot be taken to be their disqualification qua denying the benefits of Government Resolution dated 17.10.1988.
22. In view of above, both these petitions are allowed. Rule is made absolute to the aforesaid extent. Direct Service is permitted.
Sd/-
[Biren Vaishnav, J] *** VATSAL Page 53 of 53 Downloaded on : Sat Mar 07 10:59:07 IST 2020