Gujarat High Court
Sweety Industries. vs Baldev M Parmar on 3 February, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/5989/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5989 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 6005 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 6007 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 6006 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 6008 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5992 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 6003 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 6011 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
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SWEETY INDUSTRIES.
Versus
BALDEV M PARMAR & 1 other(s)
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Appearance:
JWALIT B SONEJI(7895) for the Petitioner(s) No. 1
MR AK CLERK(235) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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C/SCA/5989/2018 JUDGMENT
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 03/02/2020
COMMON ORAL JUDGMENT
1. These are the group of petitions where the identical questions of facts and law are governing the parties and therefore, they are being decided by this common oral judgment. The facts are drawn from Special Civil Application No. 5989 of 2018 for the purpose of adjudication of these matters.
2. The brief facts drawn from Special Civil Application No. 5989 of 2018 are as follows:-
2.1. The petitioner is challenging the judgment and award dated 11.01.2017 passed by the Labour Court, Nadiad in Reference (LCN) No. 114 of 2000, whereby the Court had partly allowed the reference and directed the petitioner to reinstate the respondent, at his original post with continuity of service and 20% backwages with interest. The 20% backwages in the case of the present workman comes to Rs. 1,69,587/-. The award came to be published in a Government Gazette on 30.05.2017. This has aggrieved the present petitioner who is before this Court challenging the legality and validity of the judgment and award.Page 2 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020
C/SCA/5989/2018 JUDGMENT 2.2. In a statement of claim, it is alleged that the petitioner is engaged in the business of manufacturing biscuits and the Minimum Wages Act is applicable to the petitioner establishment. The respondent was working with the petitioner since 1997 in the department of packaging and he was performing the work of feeding and was paid Rs. 49/- for work of twelve hours.
2.3. On 22.11.1990, the respondent when demanded the minimum wages, services of the respondent came to be terminated. The dispute was raised before the Assistant Labour Commissioner, Nadiad, where the petitioner raised a plea that the respondent had himself stopped coming for duties and the respondent's plea is unsustainable. The petitioner is ready and willing to take the respondent - workman in his service.
2.4. It is further lamented that the respondent had not been paid the salary for the month of November-1999 before the order of termination on 22.11.2000. It is stated by the petitioner that the respondent along with his colleagues have stopped attending to the work from 22.11.1989 and they themselves are responsible for the present state of affairs. The petitioner had expressed his willingness to take back the respondent on his duty as if he was never terminated.Page 3 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020
C/SCA/5989/2018 JUDGMENT 2.5. It appears that the recordance of evidence before the Labour Court had been completed and the Court after considering the evidence oral as well as documentary so also the submissions of both the sides, allowed the reference partly and directed the present petitioner to reinstate the respondent -
workman at his original post with consequential benefits and 20% backwages with continuity of service.
2.6. The petitioner wrote three letters on 31.05.2017, 24.06.2017 and 21.08.2017 asking the respondent to resume duty, however, he has not attended the duty according to the petitioner. The grievance is made on the part of the petitioner that although, such a request for reporting on duty has been made, no one had reported.
3. The respondent has also preferred Recovery Application No. 160 of 2017 where the petitioner attempted to resolve the issue by negotiation, however, the matter could not get settled, therefore, the present petition is preferred with the following prayers:-
"(A) Your Lordships may kindly be pleased to issue a Writ of Certiorari and/or any other appropriate Writ, direction or order to quash and set aside the impugned Award dated 11.01.2017 passed by the Ld. Labour Court in Reference (LCN) No. 114 of 2000 below Exh.30 at Annexure-A to this petition;Page 4 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020
C/SCA/5989/2018 JUDGMENT (B) Pending hearing and final disposal of this petition, Your Lordships may kindly be pleased to stay the implementation, operation and execution of the impugned Award dated 11.01.2017 passed by the Ld. Labour Court in Reference (LCN) No. 114 of 2000 below Exh. 30 at Annexure-A to this Petition & stay the proceedings in Recovery Application No. 160 of 2017 filed before Labour Court Nadiad;
(C) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice."
4. On issuance of notice, affidavit-in-reply is filed by the respondent no.1 denying all the contentions. According to him, the respondent had rendered continuous service with the petitioner. In the examination of the witnesses of the petitioner, it had been admitted in the cross examination of the witnesses of the petitioner that the respondent had worked with the petitioner establishment continuously from the date of joining of service. The oral termination came on 22.11.1999 as there had been a demand of minimum wages on the part of the workman. 4.1. The subsequent event also has been narrated whereby, it has been stated that the respondent had been asked to join the duties by intervention of the Court and the Conciliation Officer. They attempted to so do it and his service eventually came to be terminated. It thus appears that the workman made a demand on 06.01.2000 for minimum wages and his services came to be Page 5 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT terminated on 08.01.2000 without following the due procedure and without complying Section 25(F) of the Industrial Disputes Act,1947 (hereinafter referred to as the 'ID Act'). 4.2. It is further lamented that in response to the letter addressed by the petitioner for reporting on duty, it had been answered that Shri Pavankumar Rameshbhai Punjabi, the owner of the petitioner establishment had gone to Mumbai and the concerned workman will be reinstated only after his return. 4.3. The full backwages have never been given, which is also apparent from the various documents which have been submitted.
5. The rejoinder affidavit also has been filed by the petitioner which does not require any dilation.
6. This Court has heard learned advocate Mr. Jwalit Soneji appearing for the petitioner - employer, who along the line of the petition has strenuously argued before this Court that the respondents never worked pursuant to the directions issued by this Court, moreover, they had not only filed the recovery application under Section 33(c)(2), but also have made a request under Section 33(c)(1) of the ID Act. They have no intent to work and therefore, no purpose is going to be served insisting on their Page 6 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT working with the establishment of the employer.
7. According to learned advocate Mr. Clerk, it is wrong to say that the respondents are not desirous to work. He drew the attention of this Court to the communication addressed on 06.12.2018, in presence of the Government Labour Officer pursuant to the order of this Court, the Conciliatory Officer remained present and Rojanama also has been prepared. He also has drawn the attention of this Court to the communication dated 14.02.2019 making a grievance that they have presented themselves for the past three months, neither any Identity Card nor Pay Slip nor other documents have been furnished to them and their pay being paid at the rate of Rs. 280/- per day is less than the minimum wages.
7.1. Learned advocate Mr. Clerk has further drawn the attention of this Court to the termination of the services of the respondent who made a request by RPAD. He thus, fervently has urged before this Court that the petitioner is not desirous to treat the respondent as his employees. For termination of their services oncer again on 05.06.2019, he once again has approached the Labour Commissioner and the reference is also pending, if not already done, it is likely to be referred to the concerned Court.
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C/SCA/5989/2018 JUDGMENT
8. On the basis of the submissions made on both the sides, the judgment and award passed by the Presiding Officer, Labour Court, Nadiad, shall need to be regarded. The Trial Court has noted that since 1997, the respondent worked in packaging department at night shift and was performing the work of feeding. The petitioner is engaged in a manufacturing process of biscuits and the Government has decided to apply the rates of minimum wages who engaged in manufacturing process as per the notification dated 01.05.1997. They used to be paid Rs. 52/- for work of twelve hours. The less amount of wages has resulted into the industrial dispute before the Labour Commissioner, Nadiad.
9. Through the conciliation proceedings, the petitioner has raised a plea that the respondent had stopped attending to the work and as the petitioner has shown his willingness, on 16.12.1999 the respondent joined the work and the dispute for backwages was referred to the Labour Court for adjudication. The salary was not paid for the month of November, 1999 before the termination on 22.11.1999, therefore, the request is made by sending a communication dated 06.01.2000. The workman was being paid Rs. 52/- for twelve hours and the rates of salary was noted by pencil in the salary statement. The Court took into Page 8 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT consideration the oral as well as documentary evidences and also closely examined the defense of voluntary abandonment of work raised by the petitioner. The Court also recorded whether the notice seeking explanation for abandonment of work was given and after receiving the explanation, whether departmental proceedings had been initiated. If not done, that would amount to retrenchment and retrenchment compensation has to be given. Admittedly, there was no inquiry held and the defense was take that the workman was not their employee and he was employed by a contractor. Such contention according to the Trial Court was not raised in the written reply.
10. The Court after detailed consideration of the material on record has held that the respondent has already worked for more than 240 days in a preceding twelve months' period. It was for the first time that the contention has been raised by the petitioner that the respondent was working as a workman of the contractor namely Multi Services. Such contention never was raised in the written reply. The Court found that there was an ingenuity of the learned advocate, who later has replaced the earlier advocate. The Court did not entertain, at a belated stage, such a contention of the respondent being the workman of the contractor in absence of any pleadings or evidence to support Page 9 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT the same.
11. The workman whether has performed continuous service under Section 25(B) of the ID Act has also been closely examined to hold that the workman once discharges the burden that he has completed 240 days of continuous service, the burden would shift upon the employer, referring to the decision in case of Shriram Industrial Enterprise Ltd. vs. Mahak Singh & Ors., reported in 2007 II CLR 744 . By way of the decision of this Court rendered in Bilimora Nagarpalika vs. Jashuben Jashavantbhai Solanki, reported in 2013 (1) GLR 845, the Court held that the said burden of having performed continuous services have already been discharged. According to the Court, the non-production of the documents, looking to the decision rendered by the Apex Court in case of Director, Fisheries Terminal Division vs. Bhikhubhai Meghajibhai Chavda, reported in 2010 AIR SCW 542, would require that material to be adduced by the petitioner. Considering the documents of the respondent and those produced by the petitioner, it was then held by the Court that the onus which has been shifted upon the employer has not been duly discharged.
12. It further appears that the genesis of this termination was the demand of salary as per the minimum wage. By an oral Page 10 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT termination on 22.11.1999, the respondent's services have ended. He raised the industrial dispute and as mentioned hereinabove, he was ready to join the duties, however, the dispute regarding backwages was pending before the Conciliatory Officer.
13. All in all, what emerges is that the initial termination has come on 22.11.1999. The respondent raised industrial dispute and during the conciliation proceedings, he was offered to get back which was accepted and therefore, he was reinstated on 16.12.1999 but, thereafter once again his services came to be terminated on 08.01.2000 as his union demanded the salary for the month of November, 1999 as per minimum wage rate.
14. Considering the contentions of the abandonment of work and insistence on the part of the respondent so also their services having terminated, the Court also tried with an idea of once again directing the petitioner to take back the respondent into service. It also realized that no written offer had been given to the respondent. Considering the conduct of the respondent where he was offered to get back to the work, the contention of abandonment of service was not accepted.
15. This Court notices that a clear breach of Section 25(F) of Page 11 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT the ID Act is observed, relying on the decision rendered in case of Ramesh Kumar vs. State of Haryana, reported in 2010 (1) Scale 432, where the Court has held that the termination if is in contravention of Section 25(F) of the ID Act, it would amount to a clear breach. It is a mandatory provision as the case of the petitioner is not falling under the exception of Section 2(oo)(bb). With the relationship of the employer and employee between the parties, it held that there is a clear breach of Section 25(F) of the ID Act.
16. With regard to the grant of backwages, the Court also noticed that the earning of the respondent was Rs. 2,000/- per month, thus, it can be said that he was not fully employed but was partly employed during the interregnum period. Looking to the tenure of service, length of service and salary etc., the Trial Court deemed it appropriate to grant 20% of the backwages which would carry 9% interest, if not paid within the certain time period.
17. This Court on extensive examination of material on record, notices that the Trial Court has in its elaborate and well considered decision, has taken into account all requisite aspects. It has also thoroughly considered the oral as well as documentary evidence to arrive at a conclusion of breach of Page 12 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT Section 25(F) of the ID Act. It is further to be noted that an attempt of once again starting the relationship of the employer - employee at the intervention of the Court also had not succeeded. The Trial Court has duly considered all necessary aspects for the grant of backwages and even noticing that there was an income of respondent, the well laid down law that the amount which is earned if does not commensurate with the income of the person prior to his termination, shall need to be regarded while calculating the backwages. It is true that some of the workers had admitted that they did not make any attempt to secure the employment and they made attempt only to the petitioner company and not anywhere else. One worker also admitted that he was also employer at Ashima Textile and other were earning wages as per the statement of claim.
18. Merely because some of the respondents have admitted of their working somewhere else, which they are bound to do, considering their social and economic condition, that itself is not a ground to deny the backwages to the extent of 20%. It is trite law that the Court can with overall consideration of the various circumstances has also find out that the less earning can be compensated by the percentage which had been lost by the respondent - employee, which in the instant case if has been Page 13 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT calculated at 20%, no fault has to be found. With regard to the complaint made of twelve hours working, of course, there are no complaints to the authorities. Communications dated 08.01.2000 and 12.08.2002 also go to reflect that the disputes with regard to this stoppage of attending to the work / abandonment of the services so also the termination of the services has much been dealt with.
19. Much emphasis is made on the part of the petitioner on the decision of Apex Court rendered in the case of Mohd. Ali vs. State of Himachal Pradesh reported in 2018 (15) SCC 641, which deserves consideration at this stage, where Mohd. Ali was appellant who was engaged as a casual labourer in Agriculture Seed Multiplication Farm from the year 1980. He worked till the year 1991 under the different work scheme. It was the case of the respondent that he abandoned the work without informing the In-charge and never returned to the work, whereas the appellant made a representation for making a reference under Section 10 of the ID Act where the reference was made and learned Presiding Judge gave an award in favour of the appellant and directed the respondent - State to reinstate the appellant in service with continuity while denying the backwages. The question that arose for consideration was the Page 14 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT violation of provisions of Section 25(F) read with Section 25(B) of the Act, where it was submitted before the Apex Court that it is not necessary that the workman has to complete the 240 days' period during the period of twelve months immediately preceding his disengagement. Once he completes 240 days' in any calendar year, he becomes entitled to the benefit of Section 25(F) of the ID Act. The violation of Section 25(F) and 25(B) had been made at length that what amounts to the continuous service and the Court held thus:-
"9) It is a well known fact that the Industrial Disputes Act is a welfare legislation. The intention behind the enactment of this Act was to protect the employees from arbitrary retrenchments. For this reason only, in a case of retrenchment of an employee who has worked for a year or more, Section 25F provides a safeguard in the form of giving one month's prior notice indicating the reasons for retrenchment to the employee and also provides for wages for the period of notice. Section 25B of the Act provides that when a person can be said to have worked for one year and the very reading of the said provisions makes it clear that if a person has worked for a period of 240 days in the last preceding year, he is deemed to have worked for a year. The theory of 240 days for continuous service is that a workman is deemed to be in continuous service for a period of one year, if he, during the period of twelve calendar months preceding the date of retrenchment has actually worked under the employer for not less than 240 days.
10) In Surendra Kumar Verma and Others vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another (1980) 4 SCC 443, a three-Judge Bench of this Court has very Page 15 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT categorically dealt with the theory of 240 days as contemplated under Section 25B of the Act. The relevant paragraphs of the judgment are reproduced hereinbelow:-
"8....The provision appears to be plain enough. Section 25-F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present Section 25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need not be. That appears to be the plain meaning without gloss from any source.
9. Now, Section 25-B was not always so worded. Prior to Act 36 of 1964, it read as follows:
"For the purposes of Sections 25-C and 25-F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.
Explanation.--....
The difference between old Section 25-B and present Section 25-B is patent. The clause "where a workman is not in continuous service ... for a period of one year" with which present Section 25-B(2) so significantly begins, was equally significantly absent from old Section 25-B. Of the same degree of significance was the circumstance that prior to Act 36 of 1964 Page 16 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT the expression "continuous service" was separately defined by Section 2(eee) as follows:
"(eee) 'continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or lock-out or a cessation of work which is not due to any fault on the part of the workman;" Section 2(eee) was omitted by the same Act 36 of 1964 which recast Section 25-B. Section 25-B as it read prior to Act 36 of 1964, in the light of the then existing Section 2 (eee), certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one year's completed service so as to attract the provisions of Section 25-F. That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Workmen. The court said:
"On the plain terms of the Section 25-F only a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. 'Continuous service' is defined in Section 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely 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. What is meant by 'one year of continuous service' has been defined in Section 25-B. Under this section a workman who during a period of twelve calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed service in the industry. . . . The position (therefore) is that during a period of employment for less than 11 calendar months these two persons Page 17 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT worked for more than 240 days. In our opinion that would not satisfy the requirement of Section 25-B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the 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." Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25-B(2) now begins with the clause "where a workman is not in continuous service . . . for a period of one year". These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants."
11) Further, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225, in paragraphs 10 and 12 held as under:-
"10. It was, however, urged that Section 25-F is not attracted in this case for an entirely different reason. Mr Markendeya contended that before Section 25-F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman Page 18 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT has put in continuous service for not less than one year his case would not be governed by Section 25-F......
12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in sub-clause (a) of clause (2). The conditions are that commencing (sic) 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 V-A. It is not necessary for the purposes of clause (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 clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)(a) 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 Page 19 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT 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 clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (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 25-F. On a pure grammatical construction the contention that even for invoking clause (2) of Section 25-B the workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (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 clause (2) otiose.
The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it......" In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period.
12) Further, it is an admitted position that though the appellant worked as such till 1991 under Page 20 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT different 12 work/schemes i.e. Rabi and Kharif and completed 240 days in a calendar year only during the years 1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in the year 1990 and 19.5 days in the immediate preceding year of his dismissal which is below the required 240 days of working in the period of 12 calendar months preceding the date of dismissal, therefore, he is not entitled to take the benefits of the provisions of Section 25F of the Act and Division Bench of the High Court was right in dismissing the appeal of the present appellant."
20. In the instant case, as could be noticed from the decision of the Trial Court, the case of the respondent from the very beginning would have an applicability. The Court extensively discussed Section 25(B) and 25(F) and all the provisions, to hold in favour of the respondent. As could be noticed from the said decision of Mohd. Ali (supra) also, the Apex Court held that it is not necessary for the purpose of clause (2)(a) that the workman should be in service for a period of one year and if that service is continuous service within the meaning of clause (1), his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2), according to the Apex Court envisages the situation not governed by clause (1) and clause (2)
(a) provides for 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.
21. Here, in this case also the respondent has always Page 21 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020 C/SCA/5989/2018 JUDGMENT emphasized on his case being covered under Section 25(B)(1). Once, that having been proved, this decision of the Apex Court as relied upon also said that clause (2) will not apply. The Trial Court also has clearly held that his case falls under the provisions of Section 25(B)(1). Thus, that aspect also in no manner deserves any interference.
22. Resultantly, in absence of any merit, the Court finds no reason to entertain any of these petitions. The same are dismissed.
23. If, the recovery certificates issued by the Labour Court have not been already acted upon by the authority, let the same be done without further delay.
24. It is given to understand that the respondents have also made another reference after the services came to be terminated on 05.06.1990, let the said references also on an expeditious basis be considered.
(SONIA GOKANI, J) Bhoomi Page 22 of 22 Downloaded on : Sun Jun 14 01:53:23 IST 2020