Gujarat High Court
Manharbhai Sukajibhai Baria - Deceased ... vs Deputy Executive Engineer on 28 August, 2025
NEUTRAL CITATION
C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2973 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3051 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3053 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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MANHARBHAI SUKAJIBHAI BARIA - DECEASED THROUGH LEGAL
HEIRS & ANR.
Versus
DEPUTY EXECUTIVE ENGINEER & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,1.1
MR.ADITYA DAVDA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 28/08/2025
ORAL JUDGMENT
1. Since the issue raised in these petitions are similar, they are being decided by a common judgment. The facts of Special Civil Application No.2973 of 2020 of 2021 are taken for the purpose of adjudication.
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2. Rule returnable forthwith. Learned AGP Mr.Davda waives service of notice of Rule on behalf of respondent- State.
3. The present petitions are filed under Article 226 of the Constitution of India, challenging the award passed by the learned Labour Court, Godhra, dated 08.03.2019, whereby the reference filed by the petitioner came to be dismissed on the ground that the petitioner failed to establish continuity of service.
4. It is the case of the petitioner that he was engaged by the respondent as a daily wager from 16.12.1992 in the Irrigation Patrolling Department and had been serving continuously at different sites. During the course of his employment, the petitioner was not provided muster rolls, attendance registers, weekly muster sheets, etc. Despite having completed 240 days of service, he was terminated on 15.06.1997 without following the due procedure prescribed under the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act'). Challenging the said termination, the petitioner filed Reference (T) No. 47 of 2000, seeking reinstatement with all consequential benefits. The respondent Page 2 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined appeared in the proceedings and filed a written statement, contending that the petitioner had not completed 240 days in any calendar year and had, in fact, abandoned the service on his own, and therefore, was not entitled to the relief sought before the learned Labour Court. The learned Labour Court, after considering the evidence adduced by both parties, dismissed the reference, which is the subject matter of challenge in the present petition before this Court.
5. Heard learned advocate Mr. Dipak Dave for the petitioner and learned AGP Mr. Aditya Davda for the respondent state.
6. Learned advocate Mr. Dave submits that, as per the evidence adduced by the respondent, the petitioner had rendered 11 days of service in the year 1992, 217 days in 1993, 137 days in 1994, 214 days in 1995, 139 days in 1996, and 90 days in 1997. It is contended that the petitioner fulfilled the requirement under Section 25(B) (1) of the ID Act. Therefore, even if the petitioner did not complete 240 days in the immediately preceding year, his case ought to have been examined in light of Section 25(B)(1) of the ID Act, for which there is no mandatory Page 3 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined condition of continuous service in the immediately preceding year. However, the learned Labour Court has erroneously relied on Section 25(B)(2) of the ID Act and dismissed the reference. Learned advocate Mr.Dave submits that that the suggestion made by the respondent that the petitioner had voluntarily stopped reporting to work was inadvertently accepted by the petitioner during cross-examination. It is submitted that the learned Labour Court has failed to consider the violation of Sections 25(G) and 25(H) of the ID Act while adjudicating the reference. Learning advocate Mr. Dave submits the production application, which had been allowed in favour of the petitioner, was not fully complied with by the respondent. Instead, only selective documents were produced. Despite this, the learned Labour Court laid emphasis on the evidence of the petitioner who is a rustic person. Learned advocate Mr.Dave submits that in the absence of work being offered by the respondent, it cannot be presumed that the petitioner did not work continuously. The learned Labour Court, instead of appreciating the entirety of Section 25(B) of the ID Act, has mistakenly emphasized Page 4 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined Section 25(B)(2) of the ID Act alone and held that the petitioner failed to establish completion of 240 days in the preceding year. Learner advocate Mr. Dave submits that based on the evidence led by the respondent, the petitioner succeeded in establishing that similar work was being carried out through outsourcing agencies. Despite this, the learned Labour Court committed an error in discarding such evidence and in failing to appreciate the violation of Sections 25(G) and 25(H) of the ID Act. Learned advocate Mr. Dave submits that the petitioner had rendered service for nearly five years, and therefore, the learned Labour Court committed a grave error in dismissing the reference. Accordingly, the impugned award deserves to be set aside and the present petition deserves to be allowed.
7. Per contra, learned AGP Mr. Davda appearing for the respondent has vehemently submitted that in the absence of proof of continuous service as contemplated under Section 25(B) of the ID Act, no relief can be granted to the petitioner. He submits that the petitioner, admittedly, has not completed 240 days of continuous service in any calendar year, which is a mandatory Page 5 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined requirement under Section 25(B)(2) of the ID Act, and therefore, being a daily wager, he is not entitled to the relief of reinstatement. Learned a AGP Mr. Davda submits that although the petitioner claims to have been terminated in the year 1997, he filed the reference only in the year 2000. Hence, the learned Labour Court was fully justified in dismissing the reference on this ground as well. In view of the above, learned AGP Mr. Davda has prayed for dismissal of the present petition and for upholding the award passed by the learned Labour Court.
8. Having considered the arguments advanced by the learned advocates for the respective parties, and upon examination of the facts in each of the above-mentioned petitions, the following position emerges:
8.1. In Special Civil Application No. 2973 of 2020, the petitioner has alleged that he worked from the year 1992 to 1997. However, during cross-examination, the petitioner admitted that he does not recollect the number of days he worked in each year. It is further admitted by the petitioner that he had voluntarily abandoned the service. Specifically, he acknowledged Page 6 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined that in the year 1994, he worked for 167 days, and in 1997, he worked for 90 days 8.2. In Special Civil Application No. 3053 of 2020, the petitioner claimed to have worked from 15.10.1992 to 15.06.1998. However, as per his own admissions during cross-examination, he worked for only 51 days in 1992, 82 days in 1993, 62 days in 1994, 108 days in 1995, 98 days in 1996, 98 days in 1997, and 95 days in 1998. He clearly admitted that he did not work for 240 days in any of the calendar years. It is also admitted that he owns 10 gunthas of agricultural land and is engaged in agricultural activities.
8.3. In Special Civil Application No. 3051 of 2020, the petitioner alleged that he was working from 22.08.1994 until his termination on 15.06.1997. However, during cross-examination, the petitioner stated that he could not recall the number of days worked between 1994 and 1997. He also admitted that no evidence was led to establish completion of 240 days of continuous service.
Specifically, he admitted working for 23 days in 1994, 162 days in 1995, 178 days in 1996, and 115 days in 1997.
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9. Upon referring to the statements of claim filed by each of the employees, it is evident that at no point was it the case of the employees that the cessation of work was due to any reason not attributable to their own conduct. In other words, there is no specific assertion that the discontinuation of employment was not due to any fault on the part of the workman. In this background, if one would refer the provisions of Sections 25(B) and 25(F) of the ID Act, which are reproduced hereinbelow for ready reference:-
"25B. Definition of continuous service.--For the purposes of this Chapter,-- (1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer--
(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--
(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and Page 8 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than--
(i) ninety-five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case.
Explanation.--For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which--
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 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.] 25F. Conditions precedent to retrenchment of workmen.--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
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(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2 [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 3 [or such authority as may be specified by the appropriate Government by notification in the Official Gazette]."
10. Undisputedly, Sections 25(B)(1) and 25(B)(2) of the ID Act operate in distinct fields. Section 25(F) of the ID Act mandates that a workman must be in continuous service for not less than one year under the employer before its provisions are attracted. In contrast, Section 25(B) of the ID Act provides the criteria for what constitutes 'continuous service'. Specifically, even if a workman has not been in actual, uninterrupted employment for a full year, he shall be deemed to have completed one year of continuous service if he has actually worked for 240 days during the preceding 12 months. This interpretation suggests that there is no requirement for the workman to have remained employed for the entire 12-month period. From the language of Section 25(B)(1) of the ID Act, it is evident that 'continuous service' includes not only uninterrupted employment but also Page 10 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined service interrupted due to certain specified reasons, such as: sickness, authorized leave, accident, a strike (not being illegal), a lockout, or cessation of work not attributable to any fault on the part of the workman. Section 25(B) of the ID Act thus provides an inclusive and notional definition of continuous service. For the purposes of Chapter V-A of the Act, a workman who has actually worked for 240 days during the preceding 12 calendar months is deemed to have completed one year of continuous service. Such service, even if interrupted for reasons beyond the control of the workman, is still treated as continuous. Section 25(B) of the ID Act gives a sort of artificial definition of the expression every completed year, because in section 25(F)(b) of the ID Act it is suggested that it should be a service of one complete year of continuous service. Section 25(B) of the ID Act contains a notional definition that once 240 days service has been put in by workmen in preceding 12 months it will be deemed to continuous service for a year. For the purpose of calculation of number of days on which workmen has actually worked, the days to be included are mentioned in explanation under section Page 11 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined 25(B). Section 25(B)(2) of the ID Act begin with the clause "where a workman is not in continuous service within the meaning of clause one, for a period of one year or six months he shall be deemed to be in continuous service under the employer-a period of one year". Section 25(B)(1) of the ID Act suggests that interruption on this account have to be ignored and inspite of these interruptions an employee is required to be treated as in a continuous service of the employer. This court has referred the decision rendered by High Court of Delhi in the case of Surajpal Singh Versus The The Presiding Officer and another reported in 2005 (85) DRJ 70(DB) wherein, the word "year" is interpreted. The Delhi High Court has held as under:-
"27. Sections 25B(1) of the Act being beneficial and welfare provision has to be liberally and broadly interpreted, yet at the same time we cannot amend and modify a statutory provision by incorporating and adding words. Out role is to interpret the law as it exists and not to add and subtract words already used by the Legislature or usurp the role of the Legislature. The Legislature in Section 25B(2) has referred to period of 240 days in the preceding year following the date of termination as the criteria to determine and decide whether a workman has been in continuous service for a period of one year. The Legislature, however, has deliberately not mentioned the period of 240 days during the period of one Page 12 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined year as the criteria in Section 25B(1) of the Act. Section 25B(1) no where specifies that if a workman has worked for a period of 240 days in a period of one year, he is deemed to be in uninterrupted service for one year. The period of 240 days specified in Section 25B(2), cannot be legislated and read into sub-section (1)We cannot, therefore, legislate and incorporate the words 240 days into Section 25B(1) of the Act. Our judicial pen cannot write these words into the aforesaid sub-section and read then in Section 25B(1), when the Legislature has consciously and deliberately not used those words. The requirement of Legislature, as far as Section 25B(1) of the Act is concerned, is clear and unambiguous. It refers to continuous or uninterrupted service for a period of one year i.e 12 consecutive months. We cannot by judicial interruption decrease this period of 365 days to 240 days. Of course the period of one year should be interrupted liberally as has been done in the present judgment. The two judgments, in the case of Moti Ceramic Industries (2000 Lab IC 1921)(Guj)(supra) and Metal Powder Co.Ltd. (1985 (2) Lab LJ 376) (Mad)(Supra) support and have similarly interpreted Section 25B(1) and (2) of the Act. Bombay High Court in the case of New Great Eastern Spinning and Weaving Co.Ltd., V/s. Vasant Mahendeo Bidia reported in 2005(1) Cur LR 50has also taken a similar view.
28. We wish to further clarify that the above interpretation is not against workmen. The Legislature has been careful and cautious to include certain periods like authorized leave, legal strikes, lock outs, periods during which the employer illegally refuses to permit the workman to do work etc. as a period during which the workman is deemed to be in continuous or uninterrupted service. Therefore, in a given case, a workman may have worked for in fact less than 240 days, but after including the specified periods Page 13 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined mentioned in Section 25B(1), his continuous or uninterrupted service might be for a period of 12 consecutive months. Accordingly, we hold that period of 240 days is not relevant as far as Section 25B(1) is concerned as the figure 240 days is not mentioned in the said sub-section and is mentioned only in sub- section (2). It is not possible for this Court to legislate and add the words 240 days in Section 25B(1) of the Act. Section 25B (2) of the Act:
29. Sub-Section (12) of Section 25B also incorporates a deeming fiction. As per sub-section (2) to Section 25B, if a workman has worked for 240 days or 190 days (in case he is employed below ground in a mine) during the period of 12 calender months preceding the date with reference to which calculation is to be made, he shall be deemed to be in continuous service for a period of one year. In case of retrenchment, the reference date will be the date on which the retrenchment order is passed. Therefore, if a workman has worked for 240 days (190 days in case he has worked below ground in a mine) during the period of 12 calender months preceding the date of his retrenchment, the said workman is deemed to have rendered continuous service for a period of one year. Section 25B(2) refers to a period of 12 months immediately preceding and counting back wages from the relevant date and not to any other period of employment. If a workman has worked for more than 240 days during this period of 12 months prior to his retrenchment, he is deemed to be in continuous service for a year.
The words preceding the date with reference to which calculation is to be made are not redundant or otiose. The period of 12 months mentioned in Section 25B (2) is not therefore any period of 12 months but the immediately preceding 12 months with reference to which calculation is to be made. Page 14 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025
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30. Section 25B(2) as per the clause itself, comes into operation when a workman has not been in continuous service within the meaning of Sub-Section (1) for a period of one year. However, in practice and for all practical purposes a workman will be entitled to protection under Section 25F of the Act, if conditions mentioned in either of the two clauses are satisfied. The Sub- Sections are therefore in alternative. Requirement of Section 25B (1) is uninterrupted service for a period of one year and Sub- Section 2 requirement is service for a period of 240 days (or 190 days in case worker is employed below ground in a mine) during the preceding 12 calendar months prior to the date of termination/ retrenchment. By deeming fiction in Section 25B (2), the workman who has worked for aforesaid period in the preceding 12 calendar month prior to the date of termination/retrenchment is deemed to have been in continuous service for not less than one year. The two provisions, namely, of Section 25B(1) and 25B(2) are separate and distinct. The requirements and conditions to be satisfied to some extent are also different."
10.1. Therefore, in the considered opinion of this Court, a workman may, in fact, have worked for less than 240 days; however, upon inclusion of the specified periods mentioned in Section 25(B)(1) of the ID Act, his service may still be regarded as continuous and uninterrupted for a period of twelve consecutive months. It is important to note that the requirement of having worked for 240 days is not found in sub-section (1) of Section Page 15 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined 25(B) of the ID Act, but rather appears specifically in sub-section (2). Therefore, it would be inappropriate to add the words 240 days in section 25(B)(1) of the ID Act.
11. This court has also referred the decision of Apex Court in the case of Mohanlal Versus Bharat Electronics reported in 1981 3 SCC 225 wherein, it is held that the language employed in sub-sections (1) and (2) of section 25(B) of the ID Act does not admit of any dichotomy. Sub-sections (1) and (2) introduced a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter V-A. Sub-section 1 provides a deeming fiction in that where the workman is in service for certain period, for that period he shall be deemed to be in a continuous service even if his service is interrupted on account of the reasons mentioned which is not due to any fault on the part of the workman. That section suggests that these interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which would be deemed to be uninterrupted would be continuous service for the period for which the workman has been in Page 16 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined service. These sub-sections mandate that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter V-A be deemed to be continuous service i.e. only one part of the fiction. 11.1. Sub-section 2 incorporates another deeming fiction for entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in sub-section (1) for a period of one year or six months. The condition provided is that commencing the date with reference to which calculation is to be made, in case of Page 17 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. Sub- section (2) envisages a situation not governed by sub- section (1). And sub-section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just proceeding the relevant date being date of retrenchment. In order to invoke the fiction enacted in sub-section 2(a) it is necessary to determine first the relevant date, i.e., the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these facts are affirmatively answered in favour of the Page 18 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined workman pursuant to the deeming fiction enacted in sub-section 2(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in section 25F of the ID Act.
11.2. In an identical situation, the Apex Court in the case of Mohd. Ali Versus State of Himachal Pradesh reported in 2018 15 SCC 641 has held that the workman though worked since the year 1980 to 1990, however, did not complete 240 days in the immediate preceding year of his dismissal, is not entitled to take the benefit of provision of section 25 F of the ID Act. 11.3. This Court has also referred the decision rendered by the Division Bench of this Court in the case of Zonal Manager, State Bank of India Versus Modi Rajeshkumar Shantilal reported in 2018 3 GLR 2326 wherein, in the background of facts, in the statement of claim it is claimed that he did not only work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995 but from April, 1992 to June, 1993 he was in service except for cessation without his fault. The Division Bench in that background has held as Page 19 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined under:-
"7 While deciding the issue (A), what needs to be considered is that the respondent workman had specifically made out a case in the Statement of Claim that he had worked from 03.01.1989 to 31.12.1995. For the period from 01.04.1994 to 31.12.1995, he had clearly stated that he had worked for more than 240 days. In addition thereto it was his specific case that he was in continuous service for over a year of service and therefore there was no reason for applying the deeming fiction of 240 days of working days in a period of less than a year.
7.1 Section 25-F of the Industrial Disputes Act,1947 requires the employer to follow the procedure thereunder when a workman is employed in an industry and who has been in continuous service for not less than one year. "Continuous service" is defined under Section 25-B of the Act. Section 25- B(1) suggests that the workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness, authorized leave etc. Section 25-B(2) suggests that, when he is not in continuous service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could not have considered the Certificate showing the number of working days as 319, as "that period was not a period preceding 12 months prior to retrenchment". In our opinion, this submission of Shri Desai, is without merit. Continuous service as defined under Section 25-B suggests the entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If for a certain period the employer is in no position to provide work, cessation of such work without the fault of the Page 20 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined employee would not be an interruption in service and the employee would be deemed to be in service for such period. It was the case of the respondent workman here, by a positive assertion in the Statement of Claim that not only did he work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995, but that from April 1992 to June 1993 he was in service except for the cessation without his fault, and therefore the case squarely fell within the domain of Section 25-B(1) of the Act. The employer having failed to discharge its burden by producing vouchers though so ordered under Exh.18, cannot now be heard to say that the fiction of the employee having worked for a period of 240 days as envisaged under Section 25-B(2) of the Act would apply. Having failed to do so, interruptions need to be ignored and the respondent workman, as observed by the learned Single Judge needs to be treated to be in continuous service without interruption as defined under Section 25-B(1) of the Act. It is relevant to note one important aspect that Section 25B(1) had been discussed by Apex Court in case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh reported in 2005 (8) SCC page
750. Relevant para 8 of this decision is quoted as under:
"S8. To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less than one year. Sec. 25B of the Act defines continuous service for the purpose of Chapter V-A .SLay -off and Retrenchment. The purport of this section is that if a workman has put in uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lockout or Page 21 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined cessation of work, that is not due to any fault on the part of the workman, shall be said to be continuous service for that period. Thus the workman shall be said to be in continuous service for one year i.e. 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25-B. However, the workman must have been in service during the period i.e. not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned not only on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. Sub- section (2) of the Section 25B introduced the fiction to the effect that even if the workman is not in continuous service within the meaning of clause (i) of Section 25B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of Sub-section (2). By the legal fiction of sub- section (2)(a)(i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the section postulate that if the workman has put in at least 240 days with his employer, immediately, prior to the date of retrenchment, he shall be Page 22 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined deemed to have served with the employer for a period of one year to get the benefit of Section 25F."
7.2 What is meant by continuous service for the purpose of Chapter VA has been defined under Section 25B.The requisites for treating a person to be in continuous service for the requisite period,in case of Section 25F is that either he should be in uninterrupted service including service which may be interrupted on account of sickness or authorized leave etc which is not due to fault of workman or cessation of work for no fault of the workman. If a workman completes continuous service of employment of more than one year as is so established in the present case, on the failure of the employer to discharge the burden adverse inference needs to be drawn. These facts must be reflected clearly in reference to the date of retrenchment with any block of twelve months with reference to continuous service. In the present case the respondent workman has established continuous service on the test of 25(B) and therefore the deeming fiction of completion of 240 days would not set off the fact of the workman being in continuous service for one year including interruptions beyond his control."
11.4. These decisions would not be applicable in the instant case as no such type of positive assertions were made in the statement of claim or in other pleadings.
12. In above background, in the considered opinion of this Court section 25 (B)(2) of the ID Act, as per the clause itself comes into operation when a workman has not been in continuous service within the meaning of sub- Page 23 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025
NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined section 1 for a period of one year. A workman will be entitled for the protection under section 25(F) of the ID Act, if condition mentioned in either of two clauses are satisfied. Therefore, these sub-sections are in alternative. Section 25(B)(1) of the ID Act requires uninterrupted service for a period of one year and section 25(B)(2) of the ID Act requires completion of 240 days or 190 days during the preceding 12 months prior to the date of termination, therefore, these two provisions are separate and distinct and requirement and conditions to be satisfied to some extent are also different.
13. It is the case of the petitioner that production applications were filed during the proceedings; however, instead of producing the complete and continuous record, the respondent produced only selective documents. Even assuming that to be the case, in light of the clear admissions made by the petitioners during cross-examination specifically, that none of them had completed 240 days of service in any calendar year it is the considered opinion of this Court that no adverse inference can be drawn against the respondent on this Page 24 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025 NEUTRAL CITATION C/SCA/2973/2020 JUDGMENT DATED: 28/08/2025 undefined ground. With regard to the alleged violation of Sections 25(G) and 25(H) of the ID Act, the petitioners have failed to establish that any seniority list of daily wagers was maintained, or that any junior employees were retained in service after the termination of the petitioners. In the absence of such evidence, the findings of the learned Labour Court cannot be said to suffer from any illegality or perversity. Accordingly, this Court finds no reason to interfere with the impugned award. The petitions, being devoid of merits, are hereby dismissed.
14. Resultantly, these petitions are dismissed.
15. Rule is discharged.
(M. K. THAKKER,J) NIVYA A. NAIR Page 25 of 25 Uploaded by MRS. NIVYA ABHAY NAIR(HC01901) on Fri Aug 29 2025 Downloaded on : Sat Aug 30 00:20:23 IST 2025