Gujarat High Court
Executive Engineer (Mechanical) vs Chetan P. Oza on 22 June, 2005
Equivalent citations: (2005)2GLR1778
Author: R.S. Garg
Bench: R.S. Garg, Ravi R. Tripathi
JUDGMENT R.S. Garg, J.
1. Heard the learned Counsel for the parties. Placing reliance upon certain judgements of this Court, the learned Counsel for the appellant submits that in light of the said judgements and the legal position, the workman should show to the Court that within last one year from the date of retrenchment, he had completed 240 days' work and unless he shows so, he would not be entitled to the benefits of continuous service. The submission, in fact, is that if in the earlier years, the workman has done work for 240 days, the same would not enure to his benefit, but, he is still obliged to inform the Court that within one year preceding the date of the order of termination or retrenchment, he has completed 240 days.
2. Placing reliance upon a judgement of the Supreme Court in the matter of U.P. Drugs & Pharmaceuticals Co. Ltd. v. Ramanuj Yadav and Ors., 2004 SCC (L&S) 46, the learned Counsel for the workman submits that if in the year preceding the date of retrenchment, the workman has not completed 240 days, the same would not make any difference if he can show to the Court that in the earlier years, the said workman has completed 240 days.
23/06/2005
3. Ms. Mandavia, learned Counsel for the appellant, placing reliance upon a judgement of the Supreme Court in the matter of Mohan Lal v. Bharat Electronics Ltd., , has submitted that in the matter of Mohan Lal, the Supreme Court has clearly observed that for application of Section-25F of the Industrial Disputes Act, 1947, the workman/employee should satisfy the Court that he had worked for 240 days in twelve calendar months, just preceding the relevant date i.e. the date of retrenchment. Her submission is that the judgement in the matter of U.P. Drugs & Pharmaceuticals Co. Ltd. (supra) is clearly distinguishable in view of different language employed in the different provisions of law.
4. It is not in dispute before us that the present respondent did not complete 240 days' service with the Establishment in twelve calendar months, just preceding the date i.e. the date of retrenchment. The question for consideration would be that whether under such circumstances, any benefit flowing from Section-25F of the I.D. Act can be conferred upon the respondent-workman.
5. It is to be seen that Section-25F would apply to a case where a workman has been in continuous service for not less than one year and if that fact is proved, such a workman cannot be retrenched by the employer until the conditions provided in Clauses (a), (b) or (c) of Section-25F of the I.D. Act are satisfied. The words, continuous service, are defined in Section-25B of the I.D. Act. It would be necessary to note that Section-25B has been substituted by Act 36 of 1964 with effect from 19th December, 1964. For the purposes of this matter, it would be useful to quote Section-25B.
"25-B. 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 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 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. 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 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 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 year;
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.
So far as Sub-section-1 of Section-25B is concerned, there can be no dispute that if a particular person is in uninterrupted service, including the 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 cessation of work which is not due to any fault on the part of the workman, then, such person shall be said to be in continuous service. The dispute arises in relation to Sub-section-(2) of Section-25B. Sub-section-2 provides that where a workman is not in continuous service within the meaning of Clause-(1) of Section-25B for a period of one year or six months, he shall be deemed to be in continuous service under an employer if he satisfies particular conditions. In a case of deeming fiction, certain conditions are required to be satisfied before the deeming fiction takes place and is applied. Best of the example for deeming fiction would be a board outside the club which says that `dogs are not allowed, but, in case of a blindman, the dog would be deemed to be a cat'. Such a blindman can take his dog inside the club premises, so long as the dog is inside the premises, though it continues to be a dog for all others, but would be deemed to be a cat so long as it is with the blindman. The moment that dog comes out, even for the said blindman, and even for the owners or the directors of the club, the dog would be a dog. The condition precedent in such a case was that the dog should be handled by the blindman and the dog should be taken inside the club premises. If any of such conditions is not fulfilled, then, the dog which enters into the club premises would be taken to be a dog and not a cat.
6. In the case of an employee, who is not in continuous service, he would be deemed to be in continuous service if for a period of one year, 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 240 days. The condition precedent is that the workman should show and prove to the satisfaction of the authority that during a period of twelve calendar months preceding the date with reference to which calculation is to be made, he had worked for 240 days. If he fails in proving that he had worked for 240 days, the services would not be deemed to be continuous service and in another case, if he fails in proving that within a period of twelve calendar months preceding the date with reference to which calculation is to be made i.e. the date of retrenchment, he had worked for 240 days, he would be out. For application of deeming fiction, both the conditions must co-exist i.e. in the last twelve calendar months preceding the date with reference to which calculation is to be made, he had worked and he had worked for 240 days. In the present matter, the appellant had failed in proving so. Ordinarily, on this interpretation, with the assistance of the judgement of the Supreme Court in Mohan Lal's case (supra), there would have been no difficulty in allowing the present appeal, but, Mr. Mishra forestalls our judgement by referring to the judgement of the Supreme Court in the matter of U.P. Drugs & Pharmaceuticals Co. Ltd. (supra) submitting, inter alia, that in the said matter, the Supreme Court had clearly observed that if a workman proves that he had worked for 240 days in any calendar year, then too, the workman/employee would gain the benefit under the phrase of continuous service.
7. In the said matter, the Supreme Court was dealing with the provisions of U.P. Industrial Disputes Act, 1947 (28 of 1947). Section-6 has been quoted by Their Lordships in paragraph-4 of the said judgement. A perusal of Section-6 of the U.P. Act shows that it is virtually pari materia with Section-25B of the I.D. Act. In paragraph-5, the Apex Court has referred to the definition of continuous service, as employed in the U.P. Act. The definition employed in the U.P. Act, reads as under:
"2.(g) `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 a lockout or a cessation of work which is not due to any fault on the part of the workman, and 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.- In computing the number of days on which a workman has actually worked in an industry, the days on which --
i. he has been laid off under the agreement or as permitted by standing order made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid off being taken into account for the purposes of this clause, ii. he has been on leave with full wages, earned in the previous year, and iii. in the case of a female, she has been on maternity leave; so however that the total period of such maternity leave shall not exceed twelve weeks, shall be included;
It is to be immediately noticed that while Section-25B requires an employee to show that he had worked for a period of 240 days during a period of twelve calendar months preceding the date with reference to which calculation is to be made (emphasis supplied), the U.P. Act, for application of the definitions of continuous service, does not require an employee to show that he has worked for 240 days during a period of twelve calendar months preceding the date with reference to which calculation is to be made.
8. A judgement of the higher Court or even of the same court would always be binding upon us if the provisions before us were the provisions before the coordinate Bench or the higher Court. If two definitions of continuous service are different, then, the definition employed in one Act cannot be employed in any other Act because that would lead to a dangerous situation. The law of interpretation clearly says that if same words are used in the same enactment, but, in different context, at different places, then, the definition of such words or its interpretation should not be applied to the different provisions of the same Act. Present is a case where Mr. Mishra, with his usual vehemence, is trying to import the definition of the U.P. Act into the I.D. Act.
9. It is also to be seen from the said judgement of the Supreme Court that referring to Mohan Lal's case, Their Lordships clearly observed that in the matter of Mohan Lal, the Supreme Court, on an earlier occasion, had observed that Clause-2(a) of Section-25B 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 twelve calendar months counting backward and just preceding the relevant date i.e. the date of retrenchment. When the Supreme Court says that the employer has to prove that he had worked for 240 days during the period of twelve calendar months counting backward and just preceding the relevant date, then, there is no scope to hold that the words, just preceding, are otiose or superfluous or have no importance. A judgement is a judgement for what it decides. A judgement cannot be applied without appreciating the legal provisions involved and the factual situation simply on the ground that it takes a different view from the earlier view. It must be shown to the Court that very same provisions of law have been differently interpreted by the Supreme Court or by the Larger Bench of the High Court or there is a conflict of views in judgement of coordinate Bench. In the matter of U.P. Drugs & Pharmaceuticals Co. Ltd. (supra), the Supreme Court, while referring to Section-2(g) and 6(N) of the U.P. Act, has clearly observed that in view of the language employed in Section-2(g) an intention cannot be attributed to the U.P. Act that if the workman has not worked for 240 days in just preceding year, he holds no right. The Supreme Court did not interpret the Mohan Lal's case nor had over-ruled the said authority, but, has distinguished the same on the facts and the different provisions of law. The judgement in the matter of Mohan Lal (supra) still holds good. Undisputedly, the respondent has not completed 240 days in just preceding twelve calendar months, he would not be entitled to any benefits under Section-25F read with Section-25B of the I.D. Act.
10. The learned single Judge, so also the Labour Court, were unjustified in granting the relief in favour of the respondent. We quash both the orders. The appeal is allowed.
11. As the main appeal is allowed, the Civil Application is disposed of. Notice is discharged. Ad interim relief granted earlier stands vacated.