Punjab-Haryana High Court
Parties Name vs Sanjay Rana And Another on 3 December, 2010
Author: Jasbir Singh
Bench: Mukul Mudgal, Jasbir Singh, K. Kannan
CIVIL WRIT PETITION NO. 15278 OF 2000
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF Order : December 3rd , 2010.
Parties Name
Executive Engineer, Public Health Division No. 1, Panipat
...PETITIONER.
VERSUS
Sanjay Rana and another
...RESPONDENTS
CORAM: Hon'ble Mr. Justice Mukul Mudgal, Chief Justice
Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice K. Kannan.
PRESENT: Mr. Randhir Singh, Addl. A.G., Haryana, for the petitioner.
Mr. Rajbir Sehrawat, Advocate, for respondent No. 1.
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
JASBIR SINGH, J.
I have gone through the detailed judgment written by my brother K. Kannan, J. It is not possible for me to agree with the conclusion drawn by my brother. I am writing a separate judgment. Judgment.
When service of a workman (respondent No. 1) was terminated on September 1, 1996, to challenge it he went to the Labour Court. It was his case that preceding the date of his termination, in 12 calendar months, he has actually worked with his employer (the appellant) for 240 days in service. He contended that his service has wrongly been terminated without issuing notice, conducting any enquiry and also without payment of retrenchment compensation as is necessary under the provisions of Section 25-F of the Industrial Disputes Act, 1947 (in short the Act). His prayer was for re-instatement in service and payment of back wages. The appellant opposed his claim by stating that he had not completed the CIVIL WRIT PETITION NO. 15278 OF 2000 requisite period of service, which may entitle him to get protection under provisions of the Act.
The Labour Court (respondent No. 2), on appraisal of evidence, came to a conclusion that the workman had worked only for 234 days, however, by placing reliance upon ratio of the judgment of the Hon'ble Supreme Court in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, (AIR 1986 Supreme Court 458), added Saturdays, Sundays and paid holidays in the service period, to calculate the requisite period of 240 actual working days, in a period of 12 months, preceding the date of retrenchment and set aside termination of the workman. Further by noting that the termination was ordered without complying with the provisions of S. 25F of the Act, the order was declared illegal and void and the workman was ordered to be reinstated with continuity in service and on payment of full back wages.
The appellant came to this Court to impugn the above order. It is case of the appellant that Sundays, Saturdays and holidays on which wages were not paid to the workman should not have been included in calculating the requisite period of 240 actual working days to give him benefit under the provisions of Section 25-F of the Act. At the time of final hearing, one of us (Justice K.Kannan) noticed that in the case of Sunder Dass v. Punjab State Electricity Board , Patiala, and others, 2005 (II) L.LJ. 128, a Division Bench of this Court observed that for a workman, ( a daily wager), who was not paid for Sundays and other holidays either under an express or implied contract of service or by compulsion of a Statute, CIVIL WRIT PETITION NO. 15278 OF 2000 standing orders etc.(i.e. when there was no obligation on the part of the employer to pay wages for the days workman had not worked), those days could not be counted in 240 actual working days, to get benefit under Section 25-F of the Act.
To the contrary, it was noted that in the case of Executive Engineer , Public Health Division, Narnaul v. Raghbir Singh and another, Civil Writ Petition No. 6183 of 2004, decided on August 24, 2005, this Court has dealt with the same issue, relating to a daily rated workman and by making reference to the provisions of Rule 23 of the Minimum Wages Rules, 1950 (in short the Rules), it was observed that the weekly rest days shall be taken as a paid holiday and it must be counted in the period of 240 actual working days, to give benefit of the provisions of Section 25-F of the Act.
Taking notice of the divergent views expressed by the two Division Benches of this Court, vide order dated September 7, 2009, the matter was referred for constitution of a larger Bench to consider the following issue:
"Whether a daily wager who may be entitled to a rest day is entitled to reckon such rest day also as a day of service to be relevant for computation of 240 days of continuous service, irrespective of whether such rest day shall be a paid holiday or not? DAILY RATED WORKER:
Before proceeding to deal with the issue in question, it is necessary to note down as to what is the nature of service of a daily rated worker and what is his status in employment. In Daily Rated Casual CIVIL WRIT PETITION NO. 15278 OF 2000 Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India and others, 1988(1) SCC 122, it was held that non-regularisation of temporary employees or casual labour for a long period is not a wise policy. The State was directed to prepare a policy to regularise all casual workers who were in continuous service for more than one year. It was further held that the casual workers be paid wages at the rates equivalent to minimum pay in the scales of the regularly employed workers but without any increment. The workers were also held entitled to payment of dearness allowance etc. The opinion expressed by the Hon'ble Supreme Court in Daily Rated Casual Labour's case (supra) came up for consideration before a Constitution Bench of the Hon'ble Supreme Court in Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4 Supreme Court Cases 1 and such view did not find favour with the Bench. Regarding status of a daily wager/ casual labourers, it was said that no right can be conferred upon them and such like employment cannot be treated at par with regularly recruited candidates. It was observed as under:
"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature."
It was also opined that a daily wager cannot be treated as an employee holding a post. His right to claim equal wages with those who CIVIL WRIT PETITION NO. 15278 OF 2000 were permanent in service was also negatived. The above view was reiterated by the Hon'ble Supreme Court in Official Liquidator v. Dayanand and others, (2008) 10 SCC 1.
As per established law, a daily wage service has a tinge of contractual flavour between the parties. A daily wager has no pay scale. He is not entitled to get any increment. As per common parlance, he is paid for the day he works. He does not hold a post and generally he is appointed keeping in view exigencies at the spot and as soon as work is over, he does not have any right to get permanence in service, which will come to an end at that stage subject to any legal requirement, if any(emphasis supplied).
We are to deal with the issue before us by keeping above fact in mind.
RELEVANT PROVISIONS:
It is necessary to note the relevant provisions of the Act to properly analyse the question before us. The word 'retrenchment' has been defined in the Act 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 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 CIVIL WRIT PETITION NO. 15278 OF 2000 (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health)"
Section 25A of the Act lays down the conditions and effect of lay off, retrenchment etc. Section 25-B of the Act defines continuous service which reads thus:
"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 CIVIL WRIT PETITION NO. 15278 OF 2000 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 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 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 disablement caused by accident arising out of and in the course of his employment, and CIVIL WRIT PETITION NO. 15278 OF 2000
(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.)"
Sub section (1) mandates that the workman shall be said to be in continuous service for the period in question, if the workman remained in uninterrupted service. Some exceptions were carved out, i.e., interruption in service on account of sickness or authorised leave or an accident or a legal strike or a lock-out or cessation of work without any fault on the part of the workman.
Sub-section (2) carves out an exception to sub-section (1) of Section 25B of the Act by stating that where workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, by creating a deeming fiction, it was said that he shall be deemed to be in continuous service under an employer for a period of one year, if during a period of 12 calendar months, preceding the date in question, has 'actually worked' under the employer for not less than 190 days in the case of underground work and 240 days in any other case. In case of seasonal work for six months, it was said that for underground work, 90 days and for any other work 120 days shall be deemed to be six months. In the above said provision, a further exception has been carved out to calculate the period of deemed one year by stating that the period of lay off under agreement , earned leave with full wages, absence due to temporary displacement on account of accident arising out in the course of employment shall not interrupt the continuous service. In the case of a CIVIL WRIT PETITION NO. 15278 OF 2000 female, further benefit of maternity leave was also given.
The provisions of Section 25B of the Act came up for consideration before Hon'ble the Supreme Court in Mohan Lal v. The Management of M/s. Bharat Electronics Ltd., AIR 1981 Supreme Court 1253. After making a detailed reference to the above said provision and Section 25F of the Act, it was observed as under:
"Mr. Markandey contended that clauses (1) and (2) of Section 25B provide for two different contingencies and that none of the clauses is satisfied by the appellant. He contended that sub- section (1) provides for uninterrupted service and sub-section (2) comprehends a case where the workman is not in continuous service. The language employed in sub-section (1) and (2) does not admit of this dichotomy. Sub-sections (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. Sub-section (1) provides a deeming fiction in that where a workman is in service 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 of a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in CIVIL WRIT PETITION NO. 15278 OF 2000 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 Indsutrial 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. Sub-section (1) 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. 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 CIVIL WRIT PETITION NO. 15278 OF 2000 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 clause (a) of sub-section(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 sub-section(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 sub-section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2). 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 preceding the relevant date being the date of retrenchment. In other words, 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 CIVIL WRIT PETITION NO. 15278 OF 2000 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 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. On a pure grammatical construction the contention that even for invoking sub-section(2) of Section 25B the workman must be shown to be in continuous service for a period of one year would render sub-section(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 sub-section(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 sub-section(2) otiose. The language of sub- section(2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it." Section 25F deals with a condition which is necessary to meet before ordering retrenchment of a workman. It reads thus:
"25F. Conditions precedent to retrenchment of workmen.- CIVIL WRIT PETITION NO. 15278 OF 2000 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 wiring 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;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to 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."
The above provision shows that any workman , who was in continuous service for not less than one year, can be retrenched from service after giving one month's notice in writing indicating the reasons for retrenchment or on payment of wages for the period of notice. The workman shall also be entitled to get retrenchment compensation to be calculated as per formula given in the above said provision.
To decide the issue before us, it is also necessary to note down provisions of Rule 23 of the Rules:
"23. Weekly day of rest. -(1) Subject to the provisions of this CIVIL WRIT PETITION NO. 15278 OF 2000 rule, an employee in a scheduled employment in respect of which minimum rates of wages have been fixed under the Act, shall be allowed a day of rest every week (hereinafter referred to as the 'rest day') which shall ordinarily be Sunday, but the employer may fix any other day of the week as the rest day for any employee or class of employees in that scheduled employment:
Provided that the employee has worked in the scheduled employment under the same employer for a continuous period of not less than six days:
Provided further that the employee shall be informed of the day fixed as the rest day and of any subsequent change in the rest day before the change is effected, by display of a notice to that effect in the place of employment at the place specified by the Inspector in this behalf) Explanation.- For the purpose of computation of the continuous period of not less than six days specified in the first proviso to this sub-rule-
(a) any day on which an employee is required to attend for work but is given only an allowance for attendance and is not provided with work,
(b) any day on which an employee is laid off on payment of compensation under the Industrial Disputes Act, 1947 ( 14 of 1947); and
(c) any leave or holiday, with or without pay, granted by the CIVIL WRIT PETITION NO. 15278 OF 2000 employer to an employee in the period of six days immediately preceding the rest day, shall be deemed to be days on which the employee has worked. (2) Any such employee shall not be required or allowed to work in a scheduled employment on the rest day unless he has or will have a substituted rest day for a whole day on one of the five days immediately before or after the rest day;
Provided that no substitution shall be made which will result in the employee working for more than ten days consecutively without a rest day for a whole day.
(3)Where in accordance with the foregoing provisions of this rule, any employee works on a rest day and has been given a substituted rest day on any one of the five days before or after the rest day, the rest day shall, for the purpose of calculating the weekly hours of work, be included in the week in which the substituted rest day occurs.
(4)An employee shall be granted for rest day wages calculated at the rate applicable to the next preceding day and in case he works on the rest day and has been given a substituted rest day, he shall be paid wages for the rest day on which he worked, at the overtime rate and wages for the substituted rest day at the rate applicable to the next preceding day:
Provided that where the minimum daily rate of wages of the employee as notified under the Act has been worked out by dividing the minimum monthly rate of wages by twenty-six, or CIVIL WRIT PETITION NO. 15278 OF 2000 where the actual daily rate of wages of the employee has been worked out by dividing the monthly rate of wages by twenty- six and such actual daily rates of wages is not less than the notified minimum daily rate of wages of the employee, no wages for the rest day shall be payable, and in the case the employee works on the rest day and has been given a substituted rest day, he shall be paid, only for the rest day on which he worked, an amount equal to the wages payable to him at the overtime rate; and if any dispute arises whether the daily rate of wages has been worked out as aforesaid, the Chief Labour Commissioner may, on application made to him in this behalf, decide the same, after giving an opportunity to the parties concerned to make written representations:
Provided further that in the case of an employee governed by a piece-rate scheme, the wages for the rest day, or, as the case may be, the rest day, and the substituted rest day, shall be such as the Central Government may, by notification in the Gazette of India, prescribe, having regard to the minimum rate of wages fixed under the Act, in respect of the scheduled employment. Explanation.- In this sub-rule 'next' preceding day' means the last day on which the employee has worked, which precedes the rest day or the substituted rest day, as the case may be; and where the substituted rest day falls on a day immediately after the rest day, the next preceding day means the last day on which the employee has worked, which precedes the rest day. CIVIL WRIT PETITION NO. 15278 OF 2000 (5)The provisions of this rule shall not operate to the prejudice of more favorable terms, if any, to which an employee may be entitled under any other law or under the terms of any award, agreement or contract of service, and in such a case, the employee shall be entitled only to the more favorable terms aforesaid.
Explanation.- For the purposes of this rule, 'week' shall mean a period of seven days beginning at midnight on Saturday night." This rule talks of weekly day of rest to an employee, who is in Scheduled employment in respect of which minimum rate of wages have been fixed under the Minimum Wages Act, 1948. It is stated that an employee shall be allowed a day of rest every week, which shall ordinarily be Sunday. It also says that for the rest day, the employee is entitled to get payment of wages.
INTERPRETATION OF STATUES:
As per the settled position, law to interpret the provisions of a Statute, in the first instance, it is necessary to consider its plain language. It was so held by the Hon'ble Supreme Court in Guru Jambeshwar University v. Dharam Pal, 2007(2) S.C.C. 265. Relevant portion of the judgment reads thus:
"10. The language used in Section 2(aaa) is absolutely plain and clear and there is not the slightest ambiguity in the same. It is well-settled principle that the words of a statute are first understood in their natural, ordinary or popular sense and CIVIL WRIT PETITION NO. 15278 OF 2000 phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or there is something in the context or in the object of the statute to suggest to the contrary. The true way is to take the words as the legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered. As is often said the golden rule is that the words of a statute must prima facie be given their ordinary meaning and natural and ordinary meaning of the words should not be departed from unless it can be shown that the legal context in which the words are used requires a different meaning."
As per established law, it is not open to the Courts to legislate. If there is any ambiguity in the provision, the same can be explained without altering the basic spirit of that provision. The Courts can harmonise and rationalise provisions of an Act with a view to achieve the over all object of that enactment. Section 25B(1) of the Act talks of continuous service and states that a workman shall be said to be in continuous service for the relevant period if during that period he is in uninterrupted service. It further provides that if service is interrupted on account of sickness, authorised leave, an accident or a strike, which was not legal or a lock out or a cessation of work without any fault on the part of the workman, the same shall not disturb the continuity of service. This provision does not talk of definition of a year. Sub-section (2) of Section 25B of the Act has given a CIVIL WRIT PETITION NO. 15278 OF 2000 deeming fiction to the term one year/ six months, as the case may be, with reference to calculating the period of continuous service of a workman. It is stated that if a workman during a period of 12 calendar months preceding the date with reference to which calculation is to be made has actually worked for 190 days in case of workman employed below ground level in a mine and 240 days in other cases, he shall be deemed to have served for a period of one year. Similar provision exists so far as seasonal work for six months is concerned.
A reading of the aforesaid two provisions make it very clear that out of 365 days, in the twelve months, if the workman has worked only for 240 days, he shall be deemed to have actually worked with an employer for a period of complete one year. Section 25B (Chapter VA) was added in the Act in the year 1953 after the operation of the Act for quite some time. The Legislature is presumed to have taken note of various difficulties being faced by the workmen. Sub section (2) in Section 25B of the Act appears to have been added with a view to overcome interruption in continuous service of a workman and by giving a deeming fiction and thus one year was defined equivalent to 240 days only. In this manner, the Legislature appears to have given bonus to a workman of 125 days. It can be said that the benefit was given towards exclusion of Sundays, Saturdays and gazetted holidays. The Legislature's intent was obviously to the effect that on account of those holidays, the workmen should not suffer and those days should not be treated to have disrupted his service with an employer. The provision of Minimum Wages Act, 1948 and the Rules framed thereunder was very much in existence when sub section (2) of Section 25B of the Act CIVIL WRIT PETITION NO. 15278 OF 2000 was added in the Statute about more than four decades ago. If it was required, the Legislature would have added in this provision that even unpaid days of service shall be included in calculating 240 days. PRECEDENTS & DISCUSSION ON THE ISSUE:
In many cases, dispute arose regarding adding paid Sundays/ holidays when making calculation of 240 days to note as to whether a workman was in continuous uninterrupted service or not. There were contradictory views in some cases. Even the paid holidays were not considered as actual working days. This issue was analysed and explained by the Hon'ble Supreme Court in Workmen of American Express International Banking Corporation's case (supra), in which also there was a dispute as to whether in calculating 240 days, the paid Sundays/ holidays are to be included or not. By making reference to the provisions of Sections 25B and 25F of the Act and the provisions of Delhi Shops and Establishments Act, 1954, the Hon'ble Supreme Court observed as under:
"5. Section 25-F of the Industrial Disputes Act is plainly intended to give relief to retrenched workmen. The qualification for relief under S. 25-F is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in S. 25-B of the Industrial Disputes Act. In the present case, the provision which is of relevance is S. 25-B(2)(a)(ii) which to the extent that it concerns us, provides that a workman who is not CIVIL WRIT PETITION NO. 15278 OF 2000 in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman, during a period of twelve calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than 240 days. The expression which we are required to construe is 'actually worked under the employer. This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders, etc. The learned counsel for the Management would urge that only those days which are mentioned in the Explanation to S. 25-B(2) should be taken into account for the purpose of calculating the number of days on which the workman had actually worked though he had not so worked and no other days. We do not think that we are entitled to so constrain the construction of the expression 'actually worked under the employer'. The explanation is only clarificatory, as all explanations are, and cannot be used to limit the expanse of the main provision. If the expression 'actually worked under the employer' is capable of comprehending the days during which the workman was in employment and was paid wages- and we see no impediment to so construe the CIVIL WRIT PETITION NO. 15278 OF 2000 expression - there is no reason why the expression should be limited by the explanation. To give it any other meaning then what we have done would bring the object of S. 25-F very close to frustration. It is not necessary to give examples of how S. 25-F may be frustrated as they are too obvious to be stated. (emphasis supplied)
6. The leading authority on which reliance was placed by the learned counsel for the Management was Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd., AIR 1981 SC 852. We may straightway say that the present question whether Sundays and paid holidays should be taken into account for the purpose of reckoning the number of days on which an employee actually worked, never arose there. The claim was under the Payment of Gratuity Act. All permanent employees of the employer claimed that they were entitled to payment of gratuity for the entire period of their service, that is, in respect of every year during which they were in permanent employment irrespective of the fact whether they had, actually worked for 240 days in a year or not. The question there was not how the 240 days were to be reckoned; the question was not whether Sundays and paid holidays were to be included in reckoning the number, of days on which the workmen actually worked, but the question was whether a workman could be said to have been actually employed for 240 days by the mere fact that he was CIVIL WRIT PETITION NO. 15278 OF 2000 in service for the whole year whether or not he actually worked for 240 days. On the language employed in S. 2(c) of the Payment of Gratuity Act, the Court came to the conclusion that the expression 'actually employed' occurring in Explanation 1 meant, the same thing as the expression ' actually worked' occurring in Explanation II and that as the workmen concerned had not actually worked for 240 days or more in the year they were not entitled to payment of gratuity for that year. The further question, as to what was meant by the expression ' actually worked' was not considered as apparently it did not arise for consideration. Therefore, the question whether Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workmen could be said to have actually worked was not considered in that case. The other cases cited before us do not appear to have any bearing on the question at issue before us."
The Hon'ble Supreme Court has noted that in the provisions of Delhi Shops and Establishments Act, 1954, it was provided that a workman shall be paid wages for Sunday/ holiday etc. In the above case, it was specifically stated that the expression actually worked under an employer can be interpreted to mean that the rest days during which the workman was in employment and was paid wages, he shall be deemed to have actually worked under the employer.
CIVIL WRIT PETITION NO. 15278 OF 2000 To the same effect is the ratio of the judgment of the Hon'ble Supreme Court in case Management of Standard Motor Products of India Limited v. A. Parthasarathy and another, AIR 1986 Supreme Court 462. With regard to afore-said controversy, it was held that the number of days on which the workman actually worked under an employer shall also include Sundays and other holidays for which the workman was paid wages.
A similar matter came up for consideration before a Single Bench of Karnataka High Court in Himalaya Drug Company v. Taj Ahmed, 2005 L.I.C. 1899. On taking note of the ratio of the judgments of the Hon'ble Supreme Court, as mentioned above, it was observed as under:
"10.The aforesaid judgment of the Apex Court makes it clear that the words "actually worked under employer" would include all those days for which the workman has been paid wages, either under contract of service or under any statute or notification etc. In other words, those days for which no wages have been paid to the workman cannot be counted for the purpose of determining whether the workman worked continuously for a period of 240 days. There cannot be any dispute in this matter, that the workman has worked for only 197 days and was paid wages only on those days. The same is very much clear from the register Ex. M6. Further, from the material on record it is clear that the workman was not paid the wages for Sundays and other gazetted holidays either under contract of employment or under any statute or notification. No CIVIL WRIT PETITION NO. 15278 OF 2000 notification or standing order is brought to the notice of this Court to show that the casual or daily wages workers are entitled to be paid even on Sundays or general holidays during which they have not worked. Therefore, Sundays and other gazetted holidays for which the wages are not paid cannot be counted while computing the continuous service of the workman. If the holidays for which no wages are paid by the employer are excluded, the total number of actual working days of the workman would be only 197 days. Under such circumstances, if the holidays in which the workman did not work and for which no wages have been paid by the employer are excluded, the working days of the petitioner fall short of 43 days. Thus it is clear that the workman has not worked for 240 days continuously in the year preceding his termination. Hence, the Labour Court is not justified in holding that the workman has worked for 240 days continuously (including unpaid Sundays and other general holidays) in the year preceding his termination. Consequently, the impugned order cannot be sustained and the same is liable to be quashed. "
To the same effect is the ratio of the judgment in M/s Balmer Lawrie and Co. Ltd. v. First Industrial Tribunal of West Bengal and others, 2007(1) S.L.R. 765.
A Division Bench of this Court in The Karnal Coop. Sugar Mills Ltd. vs. Presiding Officer, Labour Court, Panipat and another, CIVIL WRIT PETITION NO. 15278 OF 2000 2007(1) P.L.R. 575, has held that to get benefit of Sundays and other holidays in calculating 240 days in a deemed year, it is necessary for the workman to prove that he was paid for those days. In Sunder Dass' case (supra), it was so held by another Division Bench of this Court when interpreting the provisions of Section 25B of the Act. Before the Division Bench, the following question fell for consideration:
"Whether while calculating the period of 245 days, the workman is entitled to calculate in it the Sundays and other holidays though he has not been paid for the said days being a daily wager?"
After discussing the ratio of various judgments of the Hon'ble Supreme Court, the above said question was answered as under:
"9. In view of what has been stated above, answer to the question as posed in the very beginning of the judgment would turn against the appellant - workman and it has to be held that where there is no obligation on the part of the management to pay to the workman either under the express or implied contract of service or by compulsion of statute, standing orders etc. for Sundays and other holidays when a workman has actually not worked. This may actually be more common in cases of daily- wager. Therefore, while computing the period of 240 days for the purpose of Section 25-F of the Act only working days can be counted and not unpaid holidays."
CIVIL WRIT PETITION NO. 15278 OF 2000 Similar controversy in the case of casual labourer, employed on daily wages, came up for consideration before the Hon'ble Supreme Court in Union of India and others v. Rajendera Kumar Sharma, 1993 AIR (SC) 1317. It was pleaded before the Hon'ble Supreme Court that in terms of the policy of the department, the workman was due for regularisation in service on completion of a specified period under the policy. The workman was ordered to be regularised in service inter alia on the ground that in the policy in question, it was nowhere stated that on all off days like Sundays etc., the wages should not be paid to the casual labourers. The Hon'ble Supreme Court reversed the judgment by stating that the approach of the Tribunal that since the scheme floated by the Department do not provide otherwise, the workman was entitled to be paid even for the days he did not work,( i.e., Sundays etc.) does not appear to be sound. By noting that the Tribunal has not discussed any other basis to hold that the workman was bound to get payment for all days, the judgment was set aside and the matter was remitted for fresh decision. In case Bank of India and another v. Tarun Kr. Biswan and others, (2007) 7 Supreme Court Cases 114, the Hon'ble Supreme Court was considering the calculation of 240 days in case of Budlee Sepoys who were engaged on temporary basis as per seasonal requirement of the Bank. The petitioners in that case were claiming regularisation in service. However, it was in dispute whether they have completed 240 days in service. The basic controversy was with regard to inclusion of unpaid Sundays and other holidays in calculating the above said period. The Hon'ble Supreme Court held that the view expressed in Workmen of American Express CIVIL WRIT PETITION NO. 15278 OF 2000 International Banking Corporation 's case (supra) was not even applicable so far as scheme to regularise the Badli Sepoys is concerned.
The ratio of the judgments, mentioned above, clearly indicates that the workman is entitled to include Sundays and other holidays in calculating the period of 240 days of continuous service, in a block of 12 months, preceding the relevant date, only if the workman was paid for those Sundays and holidays and not otherwise. A reading of Section 25-B of the Act makes it very clear that by giving a deeming fiction to the definition of one year, it has been made equal to 240 days whereas actually a year consists of 365 days. The Legislature has taken notice of a fact that the casual workers may not be paid for the period during which they have not worked. To safeguard their interest, a deeming fiction was introduced and the period of one year was reduced to 240 days only. Not only that as per the provisions of sub-section (1) of Section 25B of the Act, break in service 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 without any fault of the workman was held not disrupt the continuity of service of a workman. In the provisions of sub-section (2)of Section 25B of the Act, the Legislature has laid stress upon the words "actually worked under an employer". As per Explanation added to that provision, the laid off period under an agreement or standing orders etc., leave with full wages, absence due to temporary disablement caused by an accident when in employment shall also be counted towards calculating 240 days in 12 calendar months preceding the relevant date. In the case of a female worker, she is entitled to add a period of upto 20 weeks of maternity leave in calculating 240 days. The language CIVIL WRIT PETITION NO. 15278 OF 2000 of Section 25B is clear and it has further been explained by the Hon'ble Supreme Court in Workmen of American Express International Banking Corporation 's case (supra). If the provision is further stretched by giving benefit of 52 unpaid Sundays, there may be cases, in view of facts stated above, when a workman after rendering 2- 3 months of service in 12 calendar months shall be entitled to get benefit of the provisions of Section 25B of the Act. When the language of a statute is clear, then the Courts need not try to read something in it which was not intended by the Legislature unless otherwise it is necessary. As per established law, a daily wager is paid for the day of his work without holding any post. A daily wager has no pay scale, has no right to get permanent in service. For those days for which payment has been made, he will be entitled to get counted towards relevant period under the provisions of Section 25B of the Act. The Court is not supposed to interpret the provision in such a manner that it may become unrealistic and unreasonable. If further benefit of 52 unpaid Sundays and holidays is given to a workman, then he will have to actually work only for about 170 days(in some cases may be less than that), in one year to get benefit of the provisions of Sections 25B and 25F of the Act. To enlarge the provision to that extent would not be justified.
It is true that as per the provisions of Rule 23 of the Minimum Wages Rules, a workman is entitled to get weekly rest. However, until and unless it is proved on record that wages were paid for the said period the workman cannot get any benefit of unpaid day of rest to get benefit under the provisions of Section 25F of the Act.
In Raghbir Singh's case (supra), a Division Bench of this CIVIL WRIT PETITION NO. 15278 OF 2000 Court to opine that the unpaid Sundays and holidays can be included in 240 days for the purpose of getting benefit under Section 25F of the Act has basically relied upon the provisions of rule 23 of the Minimum Wages Rules and observed as under:
"We have perused the Rule 23(4) of the Punjab Minimum Wages Rules, 1950. We are satisfied that in spite of the fact that the respondent - workman rendered only 26 days service in the 8 calendar months depicted in the compilation extracted above, he was liable to be paid for four rest days in each of the said months, under Rule 23(4) (i.e. 1 day for rendering service for 5 days), subject to the condition that the respondent
-workman was employed in a "Scheduled Employment." In order to substantiate that the respondent -workman was engaged in a scheduled employment, our attention has been invited to the Schedule appended to the Rules, wherein, the Public Works Department (Public Health) is included. As such, we have no hesitation in arriving at the conclusion that the respondent - workman was paid and/ or liable to be paid for the rest days during the months he has rendered service with the petitioners-management."
Then by placing reliance upon the ratio of Workmen of American Express International Banking Corporation 's case (supra), it was further observed as under:
CIVIL WRIT PETITION NO. 15278 OF 2000 "We have no hesitation in arriving at the conclusion that the number of rest days for which the employee had been paid, is liable to be included in the number of working days while calculating 240 days service in terms of Section 25-B of the Act."
A reading of the above paragraph indicates that it was presumed by the Division Bench that the payment made for a month shall also include four unpaid Sundays. In that judgment, it was not noticed that so far as daily wager is concerned, he gets his payment on completion of each day's work. His employment is virtually contractual in nature and unless agreed upon or there is any compulsion of law, the daily wager will not get payment for unpaid days.
The Hon'ble Supreme Court in Workmen of American Express International Banking Corporation 's case (supra) has also clearly stated that the expression the actual working days shall also include those days during which the workman was in employment and was paid wages. The language of the Statute coupled with further clarification by the Supreme Court in the above case makes the position very clear and as per our view needs no further explanation.
CONCLUSION:
In view of the findings given earlier, I am of the opinion that the above said opinion of the Division Bench in Raghbir Singh's case (supra) was not correct.
Accordingly it is held that a daily wager may be entitled to a CIVIL WRIT PETITION NO. 15278 OF 2000 rest day, unless and until he is paid for the said day, it cannot be counted towards computation of 240 days of continuous service to get benefit under the provisions of Section 25F of the Act.
Let this matter be placed before the learned Single Bench for further proceedings.
( JASBIR SINGH ) JUDGE December 3rd , 2010.
DKC CIVIL WRIT PETITION NO. 15278 OF 2000 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15278 of 2000 Date of Decision. 03.12.2011 Executive Engineer, Public Health Division No.1, Panipat .....Petitioner Versus Sanjay Rana and another .....Respondents CORAM: Hon'ble Mr. Justice Mukul Mudgal, Chief Justice Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice K. Kannan Present: Mr. Randhir Singh, Addl. A.G., Haryana. for the petitioner.
Mr. Rajbir Sehrawat, Advocate for respondent No.1.
K. KANNAN J.
I. The subject of reference and the divergent views
1. The subject of reference to the Full Bench is, "whether the daily wager, who may be entitled to a day of rest, is entitled to reckon such rest day period as a day of service to be relevant for computation of 240 days of 'continuous service', irrespective of the fact of whether such rest day shall be a paid holiday or not." The matter came on a reference made by one of us (Justice K. Kannan), when it was noticed that there were divergent views expressed by two Division Benches of this Hon'ble Court on the above issue. In Sunder Dass Vs. Punjab State Electricity CIVIL WRIT PETITION NO. 15278 OF 2000 Board, Patiala and others 2005 (II) LLJ 128, a Division Bench held that for a workman, who was a daily wager and was not paid for Sundays and other holidays either under express or implied contract or by compulsion of statute, standing orders etc. could not count the days that he did not work for the purpose of reckoning 240 days of continuous service. However, in Executive Engineer, PWD Public Health Division, Narnaul Vs. Rajbir Singh and another rendered in C.W.P. No.6183 of 2004 on 24.08.2005, the Division Bench made a reference to the rules framed under the Minimum Wages Act that provides under Rule 23 that weekly rest shall be taken to be paid holiday and held that such weekly rest days must also be computed to see whether a workman had qualified as working for 240 days continuously.
II. The judgment of Supreme Court in 'American Express case'
2. The issue is not wholly without a precedent from the Hon'ble Supreme Court. In Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation AIR 1986 SC 458, the Hon'ble Supreme Court was dealing with the situation of an interpretation under Delhi Shops and Establishment Act, which provided for "close day" for every week of 7 days and the "close day" shall be a day for which the workman shall be paid his wages. The Hon'ble Supreme Court referred to the provisions of the Delhi Shops and Establishment Act and Section 25-B and Section 25-F of the Industrial Disputes Act. The issue in that case was with reference to requirement of notice and compensation under Section 25-F for a person, who had been in CIVIL WRIT PETITION NO. 15278 OF 2000 continuous service for not less than one year.The Hon'ble Court held with reference to Section 25-B defining the term "continuous service"
that, "this expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. (emphasis supplied)" Since this decision was rendered in the context of the Delhi Shops and Establishment Act that provided for a 'close day' with entitlement to an employee to claim wages on that day, the Hon'ble Supreme Court did not have the occasion to consider whether such computation of a close day for reckoning the number of days of continuous service would be possible only when the person was obtaining wages on such a holiday. The distinction that is sought to be made is that if it was not a paid holiday, the decision itself will not apply; on the other hand, the decision shall be understood as laying down a proposition that if a workman was not entitled to a paid holiday, he shall not be entitled to compute such day for deciding whether he had completed 240 days of continuous service. III. Two strands of judicial opinions sourced to the same judgment of the Supreme Court
(a) Views that hold that only paid holiday could be added for computation of 240 days of continuous service
3. Two strands of judicial views have evolved from various Courts: One, requiring the holiday to be a paid holiday in order to obtain CIVIL WRIT PETITION NO. 15278 OF 2000 a reckoning for inclusion in 240 days of continuous service and another view, holding that irrespective of whether wages have been paid or not, such a holiday or rest day shall also be computed for finding out whether he had 240 days of continuous service. First to the line of cases that understood American Express's case as applicable only in cases where there was a paid holiday: The Calcutta High Court in M/s. Balmer Lawrie and Co. Ltd. Vs. First Industrial Tribunal of West Bengal and others 2007(1) SLR 765, held while referring to the decision in American Express's case that "the respondent-Tribunal was in error of law in taking into account the unpaid Sundays and Holidays at the time of calculating actual working days of the respondent No.3 in a year. According to me, in order to count the number of days "actually worked under the employer", in addition to those days when the workman worked with hammer, sickle or pen, Sundays and holidays during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. ought to be taken into account. Since the respondent-Tribunal took into account the Sundays and holidays (both paid and unpaid) in counting the service of respondent No.3, the same cannot be sustained in law............ In my view in counting the actual working days, the payment of Bonus, Dearness Allowance, House Rent Allowance or extending the benefit of ESI Schemes are treated as relevant factors, in view of the provisions of Section 25-B(2)
(a) (ii) of the Industrial Disputes Act, 1947. Those benefits were extended to the respondent No.3 in accordance with the provisions of law having no connection with the counting of continuous service of the CIVIL WRIT PETITION NO. 15278 OF 2000 respondent No.3." In this case, the Calcutta High Court applied the American Express's case to mean that Sundays or holidays could be counted as relevant only if they were paid holidays. In Himalaya Drug Company Vs. Taj Ahmed 2005(3) S.C.T. 356, a Single Bench of the Karnataka High Court, while considering the same issue, held that Sundays and other holidays for which no wages are paid, either by contract or by compulsion of statute should not be taken into account for the purpose of reckoning the number of days on which the employee actually worked, for the purpose of Section 25-F read with Section 25-B of the Industrial Disputes Act. This decision again referred to American Express's case as well as Malkiat Singh's case (a decision of this court referred to below). Yet another judgment of a Division Bench of this court in Karnal Cooperative Sugar Mill Limited Vs. Presiding Officer, Labour Court 2007(2) SCT 551, had held that for getting benefit of Sundays or other holidays, it was incumbent upon the workman to show that he had rendered services for those days and paid as well. In the case before the Division Bench, the procedure adopted by the Labour Court by adding 69 days consisting of Sundays and other holidays in each calendar year towards working days of workman was found to be not sustainable.
(b) Views that hold that even unpaid holiday could be counted
4. The American Express's case itself was applied to the situations where a workman had not been shown to have obtained a paid holiday but those days were also treated as meriting inclusion in the computation of 240 days. In Executive Engineer, PHED Vs. Manoj CIVIL WRIT PETITION NO. 15278 OF 2000 Kumar 2000(3) SCT 394, the Rajasthan High Court held that the expression "actual working days" does not mean days on which the workman physically attended and worked. The decision of the Tribunal in including Sundays and statutory days (holidays) into account was found to be correct. The Court further found on facts that the petitioner, who had challenged the decision, had not even taken the point in the petition and had not contested the fact that the workman had completed 240 days of working. The Delhi High Court to which one of us (Mukul Mudgal.J as then he was) held in Municipal Corporation of Delhi Vs. Sanjay Kumar and others 2004 (2) SCT 636 that a finding of 240 days of work by including Sundays and holidays was not amenable to interference under Article 226 of the Constitution. A reference had been made to the decision of this Hon'ble Court in Malkiat Singh Vs. Labour Commissioner, U.T., Chandigarh and another 1996(3) SCT 164 which had held that an unpaid holiday could not be counted for drawing up 240 days, was found to be not setting out the law correctly and stated to be out of sync with the American Express's case.
IV. Whether a workman be compulsorily paid wages for a holiday, not a relevant issue for our discussion
5. There is a judgment of the Hon'ble Supreme Court itself on the issue whether a person shall be paid wages for a weekly holiday that a workman is entitled to. The said decision is cited in some cases while dealing the issue of computation and hence the law may be stated to see its contextual relevance. Union of India Vs. Rajinder Kumar Sharma 1993(3) SCT 169, 1993 AIR (SC) 1317 considered a finding of a Tribunal that held that casual labourers were entitled to be paid even for the days CIVIL WRIT PETITION NO. 15278 OF 2000 when they did not work i.e. Sundays and Gazetted Holidays. The Hon'ble Supreme Court said that the approach of the Tribunal was not sound and the Tribunal was bound to examine whether there was any other basis upon which the workman was entitled to such payment. The question was raised in the context of the employer being in the P&T Department and therefore, the decision was required to be taken on a finding whether P&T Department was an 'industry' or not and that aspect had not been discussed on merits. The Hon'ble Supreme Court, therefore, remitted the matter to the Tribunal for fresh consideration of the case in accordance with law. The decision has relevance only to a situation where before coming to a conclusion whether a workman was entitled to be paid wages on holidays also, the Court was bound to look for the basis for such an entitlement. The issue whether an unpaid holiday was to be counted for a continuous period of service was not an issue before the Hon'ble Supreme Court in that case. We have made reference to this case only to exclude it from consideration for the particular issue which is involved in this case.
V. The provisions of the ID Act and Rules under Bonus Act and a decision rendered juxtaposing both the provisions
6. The decisions of this Court as well as Karnakata and Calcutta High Court have applied the American Express's case to come to the conclusion that an unpaid holiday cannot be included for counting 240 days of continuous service. It must be reiterated that the Delhi Shops and Establishment Act provided for wages for a 'close day' and therefore, the Hon'ble Supreme Court held in that context that it was not necessary that only the days on which the workman was working with hammer, CIVIL WRIT PETITION NO. 15278 OF 2000 sickle or pen should be counted. The text of Section 25B and 25F shall be instructive but they are not reproduced, since the judgment of my learned brother Justice Jasbir Singh makes reference to the same and the same may be read here.
7. The decision of this Court in Panipat Cooperative Sugar Mills. Ltd. Vs. Presiding Officer and another 2009(4) SCT 488 came exactly to a different result by referring to Rule 23 of the Minimum Wages Act. The Rule has also been set out in the judgment of my learned Justice Jasbir Singh and it may be read into this place. I am not therefore reproducing the said provision. The Bench held, while rejecting the contention advanced on behalf of the appellant that unpaid holidays cannot be computed for counting 240 days of continuous service:-
"The submission advanced by the learned counsel for the appellant is per se unacceptable in law. The Rules relied upon by the appellant have to be in conformity with the Minimum Wages Act, 1948 (under which the aforesaid Rules have been drawn). Section 13 of the Act mandates for every rest day an employee will be entitled to the payment of wages. So as to read the Rule 23(4) of the Rules in conformity with the Section 13 of the Act, it is imperative to conclude that the respondent-workman was actually paid wages for the rest days. In view of the above, we find no merit in the contention of the learned counsel for the appellant. The instant contention can be examined from another angle as well. It is not a matter of dispute that while calculating the daily wages payable to the respondent-workman, the appellant-management divided the monthly CIVIL WRIT PETITION NO. 15278 OF 2000 wages by 26 days. It is therefore apparent, that while paying wages for 26 days, the appellant-management actually paid the workman wages for 30 days, and thereby, paid him for the rest days envisaged under the provisions of the afore-stated Act/Rules. Although actual payment was not made for the rest days to the workman in terms of the proviso under Rule 23(4) of the Rules, factually the aforesaid wages were paid as his daily wage was calculated by dividing the monthly wage by 26. Thus viewed, the payment for rest days due to the respondent workman was included in the wages paid to him for working days (underlining by me). The proviso (relied upon by the learned counsel for the appellant) under Rule 23(4) of the Rules, would be inapplicable if daily wage is calculated by dividing the monthly wage by 30, in that eventuality even under the said proviso the appellant-management would have had to pay wages to the respondent-workman for rest days. Therefore, for every 26 working days wages shown to have been paid the workman, it is imperative to hold that he was actually paid for 30 days (underlining by us). Accordingly, for calculating the number of days the respondent workman had rendered service, so as to calculate whether he had worked for 240 (or more) working days in the 12 calendar months preceding his retrenchment, under Section 25-F of the Industrial Disputes Act, 1947, he should be actually deemed to have discharged duties for 30 days although he had actually been paid for 26 working days i.e. for 4 rest days arising every month. If the calculation is made in the aforesaid manner, it is apparent that the respondent-workman would be found to have worked for more than 240 days in the 12 calendar months preceding his retrenchment. Thus, we find no infirmity, in the determination CIVIL WRIT PETITION NO. 15278 OF 2000 rendered by the learned Single Judge. Therefore, there is no infirmity also in the eventual conclusion, that the respondent-workman despite having worked for more than 240 days in the 12 calendar months preceding his retrenchment, had not been paid retrenchment compensation under Section 25-F of the Industrial Disputes Act, 1947."
The last part of the extracted portion contains an interesting interpretation. The Bench held that for every 26 working days wages shown to have been paid, it is necessary to hold that he was actually paid even for 30 days.
VI. Rules relating to statutory interpretation
(a) Reference to other statutes in pari materia
8. The reference to Minimum Wages Act itself was urged by learned counsel appearing for the State as inappropriate, for the Industrial Disputes Act is a complete Code in itself for the computation of 240 days and when the issue was whether a person was entitled to notice and compensation under Section 25-F, it has to be read only in the context of what Section 23-B provided. If it were to be necessary to find whether the workman had completed one year of continuous service, the enquiry shall not traverse beyond how it is defined under Section 25-B. I have no hesitation in observing that a statute must be read as a whole, as words are to be understood in their context. Extension of this rule of context permits reference to other statutes in pari materia i.e. Statutes dealing with the same subject matter or forming part of the same system. Viscount Simonds in a passage noticed and conceived it to be right and duty to construe every word in a statute in its context and he used it its widest sense including "other statues in pari materia (A.G.Vs. CIVIL WRIT PETITION NO. 15278 OF 2000 HRH Prince Ernest Augustus of Hanover (1957) 1 All ER 49, cf., Principles of Statutory Interpretation, Justice G.P.Singh, 12th Edition, 2010, p 298). It has also been held that it is not necessary that the entire subject matter in the two statutes should be identical before any provision in one may be held to be in pari materia with some provision in the other. The Hon'ble Supreme Court has applied the provisions of the Indian Evidence Act to the nature of proof to be adduced for presumption for gratification under the Prevention of Corruption Act in State of Madras v A.Vaidyanath Ayer AIR 1958 SC
61. A similar approach was made in Sarva Shramik Sangh v Indian Smelting and Refining Col Ltd AIR 2004 SC 269: (2003) 10 SCC 455 when Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 was read and construed along with other Labour Laws then in force, such as the Industrial Disputes Act, 1947 and the Contract Labour (Regulation and Abolition) Act 1970. The application of Minimum Wages Act is unexceptional to all types of workmen working in any Industry particularly when it is a cognate labour legislation and therefore the entitlement to a rest day and the manner of computation of minimum wages for the period of rest, as laid down in Rule 23 of the Minimum Wages Rules perfectly conforms to law. The Act itself is applicable only to industries set out in the schedule to the Act, with the additions of the respective State amendment. Section 2(g) of the Act defines defines as scheduled employment as:-
(g) "scheduled employment" means an employment specified in the Schedule, or any process or branch of work forming part of such employment;
The types of industries to which the Minimum Wages Act is applicable as CIVIL WRIT PETITION NO. 15278 OF 2000 per the Principal Act with the respective State amendment for Punjab & Haryana as well as for the Union Territory for Chandigarh are as under:
[See Sections 2(g) and 27} PART I
1. Employment in any woollen carpet making of shawl weaving establishment.
2. Employment in any rice mill, flour mill or dal mill.
3. Employment in any tobacco (including bidi making) manufactory.
4. Employment in any plantation, that is to say, any estate which is maintained for the purpose of growing cinchona, rubber, tea or coffee.
5. Employment in any oil mill.
6. Employment under any local authority.
7. Employment on the construction or maintenance of road or in building operation.]
8. Employment in stone-breaking or stone-crushing.
9. Employment in any lac manufactory.
10. Employment in any mica works.
11. Employment in public motor transport.
12. Employment in tanneries and leather manufactory.
Employment in gypsum mines.
Employment in barites mines.
Employment in bauxite mines.
Employment in manganese mines.] Employment in the maintenance of buildings and employment in the construction and maintenance of runways.
Employment in china clay mines.
Employment in kyanite mines.
Employment in copper mines.
Employment in clay mines covered under the Mines Act, 1952. Employment in magnesite mines covered under the Mines Act, 1952. Employment in white clay mines.
Employment in stone mines.
Employment in steatite (including the mines producing soapstone and tale). Employment in ochre mines.
Employment in asbestos mines.
Employment in fire clay mines.
Employment in chromite mines.
Employment in quartizite mines.
Employment in quartz mines.
Employment in silica mines.
Employment in graphite mines.
Employment in felsper mines.
Employment in laterite mines.
Employment in dolomite mines.
CIVIL WRIT PETITION NO. 15278 OF 2000 Employment in red oxide mines.
Employment wolfram mines.
Employment in iron-ore mines.
Employment in granite mines.
Employment in rock phosphate mines.
Employment in hematite mines.
Employment in loading and unloading in railways, goods sheds. Employment in docks and ports.
Employment in ashpit cleaning on railways.
Employment in marble and calcite mines.
Employment in lignite mines.
Employment in gravel mines.
Employment in state mines.
Employment in laying of underground cables, electric lines, water supply lines and sewerage pipe line.
4. Chandigarh
31. Employment in respect of brick kiln industry.]
32. Employment in tube well industries.]
33. Employment in auto repair shops and service stations and attached with any public motor transport company.
36. Employment in asbestos cement and cement concrete products.]
37. Employment in paper board and packing material manufacturing establishment.]
38. Employment in plastic and P.V.C. goods industry.]
39. Employment in soap manufacturing industry.]
40. Employment in hardware and buildings material shops.]
41. Employment in private coaching classes, schools, including nursery school and teaching institutions.
This extract is taken from Schedule
8. Haryana 109[30. Employment in brick-kilns.] 110[31. Employment in respect of operation of tube-wells.] 111[321. Employment in automobile repairs workhops.] 112[33. Employment in paper, cardboard and typewriter ribbon industries..] 113[34. Employment in manufacturing of Khandsari, Gaur and Shakkar.] 114[35. Employment in asbestos cement factories.] 115[36. Employment in petrol and diesel oil pumps.] 116[37. Employment in P.W.D. (Public Health).] 117[38. Employment in tailoring, stitching and embroidery establishment.] 118[39. Employment in P.W.D. (Irrigation).] CIVIL WRIT PETITION NO. 15278 OF 2000 119[44. Packing Industry.] (Note: See also entries of Punjab prior to its bifurcation into Punjab, Haryana and Chandigarh on 31.11.1966.] This extract is taken from Schedule
18. Punjab 214[13. Employment in textile industry.] 215[14. Employment in any foundry with or without attached machine shops.]
15. Employment in agricultural implements, machine tools and general engineering including cycle industry.
16. Employment in scientific industries.
17. Employment in textile industry.
216 [20. Employment in Ayurvedic and Unani pharmacies.] 217[21. Employment in
(i) metal rolling and re-rolling industry, and
(ii) brass, copper and aluminium utensils-making industry.] 218[22. Employment in saw mills and timber trade.] 219[23. Employment in cotton ginning and pressing factories.] 220[25. Employment in the following categories of shops and commercial establishments-
(i) Grocers and Kirana Merchants.
(ii) General Merchants.
(iii) Cloth Merchants.
(iv) Commission Agents, Bankers or Grain Dealers.
(v) Furniture Dealers or Manufacturers.
(vi) Hotels, Restaurants or Tea Stalls.
(vii) Halwais.]
221[ Employment in electroplating by using slats of chromium, nickel or any other compound and the connected burring and polishing industry.] 222 [26. Employment in potteries, ceramics and refractory industry.] 223 [27. Employment in chemical and distillery industry.] 224 [28. Employment in glass industry.] 225 [29. Employment in rubber industry.] 226 [30. Employment in respect of the operation of tube-wells.] 227 [31. Employment in respect of the brick-kiln industry.] 228 [32. Employment in sports goods industry.] 229 [33. Employment in electricity generation and supply.] 230 [34. Employment in P.W.D. in Public Health Branch.] 231 [35. Employment in P.W.D. Irrigation Branch.
[36. Employment in tailoring, stitching and embroidery establishments.] CIVIL WRIT PETITION NO. 15278 OF 2000 232 [37. Employment in automobile repair shops and service stations (not attached with any public motor transport company)
38. Employment in milk processing and milk products manufacturing establishment excluding Halwai shops.
39. Employment in soap making and silicate manufacturing establishments.
40. Employment in ice factories and cold storages.
41. Employment in bakeries including biscuit making establishments.
42. Employment in vegetable ghee manufacturing and vegetable oil refining establishments.] 233 [Employment in petroleum supply stations.
234 [44. Employment in motor-body builders.
45. Employment in surgical and clinical instruments-making industry.
46. Cement-pipe making Industry.] 235 [47. Employment in manufacture of indigenous sugar, Boora, Khandsari and Gur, etc., from sugarcane.
48. Employment in manufacture and refining of sugar (vacuum pan sugar factores).
49. Employment in Ahatas attached to wine and liquor shops or employment in Ahatas attached to beverages shops except soft drinks and carbonated water.
50. Employment in laundry services and cleaning and dyeing plants.
51. Employment in dealers dealing in steel trunks, drums, steel safes, vaults and almirahs, sanitary and plumbing fixture and fitting of metals.
52. Employment in hair dressing such as those done by barbers, hair dressing salons and beauty shops.
53. Employment in dealers in electrical (sic) and electrical goods including radio, television, gramophones, public address equipments and watch clock and repair shops.
54. Employment in dealers in book sellers, stationers and book binders.
55. Employment in dealers in tent, crockery and house-hold goods.
56. Employment in dealers photographies and optical goods.
57. Employment in dealers in medicines and chemicals.
58. Employment in utensil shops.
59. Employment in manufacture of pulp, papers and paper board and straw boards including newsprint.
60. Employment in dealers in footwear and travel goods life suitcase, bag etc.] CIVIL WRIT PETITION NO. 15278 OF 2000 236{62. Employment in forestry and logging.] 237{63. Employment in private educational institutions.] PART II
1. Employment in agriculture, that is to say, in any form of farming including the cultivation and tillage of the soil, dairy farming, the production, cultivation, growing and harvesting of any agricultural or horticultural commodity, the raising of livestock, bees or poultry, and any practice performed by a farmer or on a farm as incidental to or in conjunction with farm operations (including any forestry or timbering operations and the preparations for market and delivery to storage or to market or to carriage for transportation to market of farm produce).
(b) Meanings of 'authorized leave' and 'cessation of work'
9. The learned counsel appearing for the workman contended that the scheme of the provisions under Section 25-B itself provided a clue as to how a fiction is introduced to count even days when the workman had not actually worked to be counted for continuous service. We have extracted Section 25-B already and the learned counsel refers to the fact that as per the explanation contained in the said Section, a break due to temporary disablement of a workman was to be counted towards 240 days, whether wages were paid or not. Here, the fact that a workman had not been paid is expressly stated to be irrelevant. There is a further explanation in the same Section that even a break due to maternity leave is entitled to count towards 240 days irrespective of the fact that whether the workman was entitled to wages for this maternity period. He also refers to Section 25-G which prescribes that while setting out the procedure for retrenchment, the only person last employed to be retrenched shall alone be relevant and it is irrelevant whether the person, who was retrenched had either worked for 240 days or he had actually been paid wages for entire holidays or not. The CIVIL WRIT PETITION NO. 15278 OF 2000 reference to Section 25-G, in our view, is unnecessary for it contemplates a different situation of rules governing retrenchment and re-employment.
(c) Harmonious construction of the expressions found in S.25B ID Act
10. An answer to this could come only by harmonious reading of Section 25-F and 25-B. Learned counsel for the respondent-workman also urged that if payment of wages alone shall be treated as relevant for computation of 240 days, it is possible for an employer to take advantage of his own wrong by not making the payment and count those unpaid days to be excluded from consideration. This is again not a point that falls for our consideration since it is not the consequence of non-payment when he is required under an express or implied contract to pay that is material. We are considering a case where an employer is not bound to pay wages during a holiday, such as to a daily worker, who gets paid only for the days when he actually worked.
11. The whole understanding of this case could still start only from how the Hon'ble Supreme Court decided the case in American Express. The Hon'ble Supreme definitely held that for the purpose of computation of 240 days, it shall not be understood as meaning only days when the workman was working with hammer, sickle or pen could be counted. We shall note that under Section 25-B of ID Act, the days which may be interrupted due to sickness or authorized 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 should also be counted. We are not dealing with the case of sickness and therefore, we will CIVIL WRIT PETITION NO. 15278 OF 2000 exclude it. Nor are we dealing with cases of absence due to any accident, strike or lock-out. It has to be seen whether a person who avails of a holiday could be said to have enjoyed it as an authorized leave. It may also be seen whether a cessation of work, which is not due to any fault on the part of the workman would include even a cessation of work due to a holiday that he is entitled to obtain. The expression 'authorized leave' or 'leave' are not defined under the ID Act. 'Cessation of work' is also not defined. We will, therefore, attribute to them ordinary meanings available through Law Lexicon. In Superintendence Company of India Private Limited Vs. Krishnan Murgan AIR 1986 SC 1717, the Hon'ble Supreme Court held that by plain grammatical meaning, the word 'leave' in relation to an employee as voluntarily leaving up the service by him and would also include a case where he is discharged or dismissed or his services are terminated by his employer. The Ramanatha Aiyar's Law Lexicon, 3rd Edition 2005, gives meaning to the expression 'leave' (as a noun) as "permission", and (as a verb) according to the context or intent with which it is employed, "the word may mean to abscond; to depart; to get off; to give up; to go away from; to quit; to remove from; to resign; to submit; to suffer to remain; to withdraw from". The term "authorized leave" is not defined in any enactment except that in certain labour legislations, it is referred to in the context of the definition of wages. For example, Section 2(22) of the Employees' State Insurance Act, 1940 defines wages as "of remuneration paid or payable in cash to an employee if the terms of the contract of employment express or implied were fulfilled and includes any payment to an employee in respect of any period of authorized leave, lock-out, CIVIL WRIT PETITION NO. 15278 OF 2000 strike, which is not illegal or lay off any other additional remuneration if any paid at intervals not exceeding to two months." The definition of 'wages' under the Industrial Disputes Act itself does not make any reference to an authorized leave and whether a person is entitled to wages during such period. The entitlement to wages during an authorized leave or a holiday could be a term of service itself but that does not still answer the issue for us, for, we are dealing with the situation of a daily wager, who gets his wage only on the day when he works. If he does not work on a particular day, obviously he does not obtain his wages. The expression 'daily wager' itself takes into account only situations where by his dint of work on that day or daily, he earns his wage. A worker on daily wages who comes to work the way he pleases and takes wages on the days that he works is not the only class of persons whom we are dealing with. We are dealing with the situation where there exists a systematic work and the worker is prepared to work on all days in a week but still the law recognizes to him certain rights not to work. He may draw his wages but still it shall not be possible for an employer to complain that he did not work on a particular day if only that day was a day when he was entitled to obtain to himself a cessation of work without losing any other benefit. To examine a normal situation of how an expression of continuous service is reckoned, if a workman works on all days in a month except on a Sunday or a day of rest following six days of continuous work, it shall be always understood that he had worked for the entire period of a month. The day he had absented were days when he was entitled to absent himself. This understanding gives to us a certain light in an area of darkness that we CIVIL WRIT PETITION NO. 15278 OF 2000 are still unraveling. We have already examined that a continuous service contains some deeming and fictional instances. The expression "actually worked" does not come in the first clause of Section 25-B. It is seen only in the other fictional instances which Section 25(b)(2) addresses, that is, when a workman, who works for 190 days in case of mines or in case of 240 days in any other case shall be deemed to have worked for 12 calendar months. While 25(b)(i) gives instances where a person could be absent and still be treated as working, clause (ii) talks about the actual working although less than 365 days or 12 months but who shall be treated as having worked for 240 days or 180 days as the case may be. This 'actual' working in Clause (2) must include such exceptional situations as provided under Section 25(b)(i). For instance, a person, who did not work due to a lock-out could still be treated to be a person, who has actually worked under clause (ii) and that actual working for 240 days would conclude reference to his working for continuous period of 12 months. Therefore, actual working itself admits of situations when a person was not working. I have no doubt in our mind that if I cannot bring a rest day when he was not paid within the meaning of either an authorized leave or a cessation of work, which was not due to any fault on the part of the workman, the petitioner shall not be entitled to include an unpaid rest day in the total computation of 240 days. A day when even a daily wager is entitled to assume that he could not be compelled to work ought to be a day when his absence is authorized and consequently an authorized leave. It can also be a day when the cessation of work that he has availed to himself cannot be attributed as any fault on his part. If it is a day of rest as one of entitlement, then CIVIL WRIT PETITION NO. 15278 OF 2000 there is no fault on his part to remain absent.
12. The correctness of logic that is propounded here in making a fictional day of work could be tested also by stating a counter point to see whether our interpretation still survives what is posited through such a counter point. An attack to our interpretation could be that the Industrial Disputes Act itself specifically delineates instances under Section 25(b)(i) when certain types of absence could be termed to fall within the expression of "uninterrupted service". Should we add another instance of interruption such as a holiday that a person is entitled to, when he does not draw his wages? The other argument that could still be urged to counter the interpretation that I have propounded is, if the law provides for already a fiction of a continuous work of 240 days or 180 days as meaning a continuous service for a period of one year, should be add another 52 days of Sundays or other rest days in every week to be also deducted as one of entitlement of a workman? There are incidentally the questions that my learned brother poses in his judgment. To such arguments, my response would only be that the concept of "continuous service" is not expanded thereby nor an additional day of rest is added as a day of work for computation of 240 days. If we recognize that a continuous service could mean to include even service, which is interrupted by leave due to service authorized leave, an accident or strike, which is not illegal or a lockout or cessation of work, which is not due to the fault of the workman, we are not adding yet another specie of a holiday, which interrupts the service for reckoning continuous service. I have outlined the fact that to a person who is entitled to a day of rest or a holiday after six days of continuous CIVIL WRIT PETITION NO. 15278 OF 2000 work, the leave or holiday that he gets on the 7th day is truly authorized. In that sense, a Sunday or a rest day which entitles a workman not to work is an authorized leave and consequently such interruption of service shall go to fall within continuous service. Again we are not reducing from 240 days or 180 days as the case may be any further holiday, such as a Sunday or a rest day indiscriminately. It is not as if a workman can work for a day and still claim a Sunday or a rest day also to be counted as his day of work. The Sunday or rest day will be taken in packets of a week. If he has worked for six days, the 7th day shall be a day when he is entitled to a holiday. It will be only those Sundays or rest days which a person earns by his work for the remaining six days that shall go into reckoning for the computation of 240 days. In this way, one may ensure that we do not simply add on 52 days or a weekly rest day when he has not worked to be counted, without minding the fact whether he had worked for the remaining days. If he had not worked for all the remaining days in a week then such Sunday or rest day cannot be excluded. We are stating all this in the context of a non- factory worker, for if he is a factory worker, the issue is simpler, which I have examined in a subsequent para 14.
(d) Fictional treatment of 'continuous employment' under English Law
13. Under the English law applicable in UK, in Employment Rights Act, 1996, there are similar provisions for inclusion of certain days of rest or holidays ascertaining the period of 'continuous employment'. CIVIL WRIT PETITION NO. 15278 OF 2000 Under the said Act also, there is a presumption that a person's employment during any period is continuous. The presumption will continue from the date when the continuous employment begins with the day on which the employee starts work (see para 104 of Halsbury's Laws of England, Vol 16(1A), 4th Edition, reissue, 2005). This is pointed out only to show that a continuous employment is a normal incident and there may be statutory presumptions which may make possible for an employee to contend that there had been no break in service. This example is only to discuss that fictional references to 'continuous service' are not anathema to labour jurisprudence.
(e) In the context of a 'factory' worker
14. The Factories Act, 1948 under Section 55 deals with intervals for rest. The Section reads as follows:
"55. Intervals for rest.- (1) [The periods of work] of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.
(2) The State Government or, subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt any factory from the provisions of sub-
section (1) so however that the total number of hours worked by a worker without an interval does not exceed six.
Section 52 refers to weekly holidays and the same reads as follows:-
"52.Weekly holidays.- (1) No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day) unless-
(a) he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, and
(b) the manager of the factory has, before the said day or the substituted day under clause (a), whichever is earlier,-
CIVIL WRIT PETITION NO. 15278 OF 2000
(i) delivered a notice at the office of the Inspector of his intention to require the worker to work on the said ay and of the day which is to be substituted, and
(ii) displayed a notice to that effect in the factory.
Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.
(2) Notices given under sub-section (1) may be cancelled by a notice delivered at the office of the Inspector and a notice displayed in the factory not later than the day before the said day or the holiday to be cancelled, whichever is earlier. (3) Where, in accordance with the provisions of sub-section (1), any worker works on the said day and has had a holiday on one of the three days immediately before it, that said day shall, for the purpose of calculating his weekly hours of work, be included in the preceding week.
15. If we are only dealing with an instance of a factory worker, the definition under Section 52 itself will give the answer to the question whether a workman who has a day's rest in a week that comprises of seven days is entitled to include that day for the purpose of computing 240 days. Section 52 is peremptory in the sense that if he is made to work on any holiday, he shall be entitled to a compensatory holiday as provided under Section 53. This way a worker obtains willy-nilly a right of entitlement to a weekly rest, even if he does not avail of a holiday on any one of the seven days. Section 53 reads as follows:-
"53. Compensatory holidays.- (1) Where, as a result of the passing of an order or the making of a rule under the provisions of this Act exempting a factory or the workers therein from the provisions of Section 52, a worker is deprived of any of the weekly holidays for which provision is made in sub-section (1) of that section, he shall be allowed, within the CIVIL WRIT PETITION NO. 15278 OF 2000 month in which the holidays were due to him or within the two months immediately following that month, compensatory holidays of equal number to the holidays so lost.
(2) The State Government may prescribe the manner in which the holidays for which provision is made in sub-section (1) shall be allowed.
16. If a worker in a factory is entitled to a weekly rest and he had a continuous service in the factory, the person could be understood as in continuous service, even if he did not work on every single day in a week. The computation of 240 days in such a case of a factory worker should also therefore be understood to include those days of weekly rest regardless of whether he is paid wages or not. It is not merely dependent on the term of contract of service whether he should be paid his wages on his weekly rest day or not. It may be by means of a package that when a workman is assured of a monthly wage, he works for 26 days and assumes by the monthly wages, they are stipulated in the context of wages for all the 30 days. In the employer's own reckoning, he may work out a monthly wage on the basis of employee's productivity for the days when he actually works, namely, for 26 days. By a strict mathematical application of a determination of a wage by productivity obtained, it could be possible to contend that the employer was paying wages only for 26 days. It could still be legally possible for both parties to assume that the monthly wages were wages paid for all the 30 days. This falls on a logic that finds expressed in Panipat Cooperative Sugar Mills Case, referred to supra.
(f) What is applicable to a factory worker shall apply for an industrial workman also, because a weekly rest is a matter of entitlement CIVIL WRIT PETITION NO. 15278 OF 2000
17. If such a meaning could be attributed to a factory worker, we do not see how it could be different even to a non-factory employment or industrial employment as it should properly be called. So long as employment is in an industry the provisions of Industrial Disputes Act would be applicable. As in the case before Hon'ble Supreme Court in Rajinder Kumar Sharma's case referred to supra, the issue is not whether the workman is entitled to be paid his wages on a weekly rest day. If he is not, the only point is whether such a rest day should be treated as a day when he had worked for any purpose mentioned under Section 25-B. Even without reference to the Factories Act, any workman in an industry shall still be entitled to claim that he is entitled to a day of rest. This right could be sourced to Convention No.29 of the Convention Concerning Forced Labour. In the General Conference of the International Labor Organisation, adopted on 28.06.1930, a Convention called as Forced Labour Convention, 1930 was placed for ratification by the members of the International Labour Organization. Article 13 reads as follows:-
"13. (i) The normal working hours of any person from whom forced or compulsory labour is extracted shall be the same as those prevailing in the case of voluntary labour and the hours worked in excess of the normal working hours shall be remunerated at the rates prevailing in the case of overtime voluntary labour.
(ii) A weekly day of rest shall be granted to all persons from whom forced or compulsory labour of any kind is extended and this day shall coincide as far as possible with the day fixed by tradition or custom in the territories or regions concerned.
18. India is one of the signatories having ratified the convention CIVIL WRIT PETITION NO. 15278 OF 2000 on 30.11.1954. Article 51 of the Indian Constitution sets out in Part IV under the Directive Principles of State Policy that the State shall endeavour to (a) promote international peace and security; (b) maintain just and cordial relation between nations; (c) foster respect for international law and treat the obligations in the dealings of organized people with one or another; (italics supplied) and (d) encourage settlement of international disputes in the arbitration. As a country that has ratified an International Convention, it is needless to state that in India, a worker obtains a right to a holiday in every week. Section 25-B that defines continuous service must, therefore, be understood as including also a day when a workman is entitled to obtain a day of rest, irrespective of whether wages are paid on that day under a contract or a statute. It is one thing for a workman to demand a wage during the day when he did not work and quite another to insist that he shall be granted one rest day for fortifying his right to claim that he is still in continuous service. As a measure of statutory interpretation, it shall be permissible to use an international instrument for interpreting municipal law. In Entertainment Network (India) Limited Vs. Super Cassette Industries Limited 2008 (13) SCC 30, while interpreting domestic/municipal laws, the Hon'ble Supreme Court has said that it could extensively make use of international law or international conventions, inter alia for the following purposes:-
(i) as a mass of interpretation;
(ii) justification or fortification of a stand taken;
(iii) to fulfill spirit of international obligation, which India has entered into when they are not in conflict with the existing domestic law;
CIVIL WRIT PETITION NO. 15278 OF 2000
(iv) to reflect international changes and reflect wider civilization;
(v) to promote relief contained in a covenant, to influence in a national law and;
(vi) to fill gaps in law (para 71).
The external aid to such application becomes necessary in this case to support the view that we have taken that a workman, who had worked for six days in a row is entitled to obtain the 7th day as rest, which is not specifically enumerated under the Industrial Disputes Act itself. It cannot be merely seen that only the Factories Act or the Minimum Wages Rules for a Scheduled employment make possible that entitlement to a worker in the factory. It shall be available to every other workman, who does not fall within the Factories Act or the Minimum Wages Act and Rules, but who comes within the purview of the provisions of the Industrial Disputes Act. In Apparel Export Promotion Council Vs. A.K. Choptra 1999 (1) SCC 759, the Hon'ble Supreme Court held that Courts are under an obligation to give due regard to international covenants and norms for construing domestic laws. In Kuldip Nayyar VS. Union of India 2006(7) SCC 1, the Hon'ble Supreme Court held that "there should be no quarrel with the proposition that international covenant and declarations as adopted by the Unions have to be respected by all signatory States and the meaning given to them has to be such as would help in effective implementation of the rights declared therein." The Hon'ble Supreme Court was dealing with the issue of applicability of universal doctrine of human rights and principles thereof into domestic CIVIL WRIT PETITION NO. 15278 OF 2000 jurisprudence for considering that the universal declaration of human rights would be satisfied not necessarily by secret ballot but even by equivalent free voting procedures. In that case, the Hon'ble Supreme Court, however, held that the domestic law was clear enough that it was not necessary for the Hon'ble Supreme Court to look elsewhere to deal with the issues. We do not have a situation of any conflict of municipal law with international law. If it exists, it is needless to say that it will be domestic law which will prevail. On the other hand, we are trying to read into domestic law that it does not expressly provide i.e. if a workman is entitled to a day of rest in a week, which by the provisions of the Industrial Disputes Act itself we have no guidance, we can look to an international covenant to enable a workman to claim such a right. If he is entitled to it as of right, he is entitled to treat himself as having continued in his work. That reckoning would enable him to make any weekly rest day as going to include within a period of 240 days that he must have, in order to claim that he has been in a continuous service for a period of one year.
(g) Status as a 'daily rated worker or casual worker' not an anathema for being in 'continuous service'
19. For applicability of Section 25F ID Act, it is irrelevant that the worker is a daily rated worker. When we examine the issue for application of Section 25B, it is unnecessary to examine if he is a permanent workman or he has been regularized in service. We must consciously avoid interpretations which Section 25B itself avoids. The meaning of 'continuous service' in order that a workman is entitled to invoke the requirement of notice under Section 25F does not need to CIVIL WRIT PETITION NO. 15278 OF 2000 prove that he is a 'regular' workman or a 'permanent' workman. If he is otherwise a regular workman, the terms of service themselves would govern the situation against arbitrary removal from service and he would not require to invoke Section 25F to complain of such action, though it may provide an additional ground. Or, in some situations, even a removal of a 'regular' or 'permanent' workman after notice under Section 25F would not be valid if such workman relies on any term of a contract about such regular or permanent service against premature removal or dismissal. It is only for this reason that reference or reliance on the judgments of the Supreme Court in Secretary State of Karnataka and others Vs. Uma Devi and others (2006) 4 SCC 1 or the decision in Official Liquidator V. Dayanand and others (2008) 10 SCC 1 are unnecessary. They were rendered in the context of service jurisprudence where appointments are driven by recruitments rules, and the non-availability of protection of being retained in service, who are appointed de hors the rules or in express violation of such rules that full foul of Article 14 of the Constitution. The non-applicability of this principle was noticed by the Supreme Court itself in the decision in Punjab State Warehousing Corporation V. Harjinder Singh (2010) 3 SCC 192. In this case, the reference is in the context of invoking the statutory protection under Section 25F of ID Act and for such an exercise, there is no need to see if he is a daily rated workman or not. It must be remembered that a daily rated workman or a casual workman is not a trembling aspen perched precariously on an ivory citadel to be discarded at will. The ID Act affords protection to every workman, who has completed one year continuous service and this judgment is only CIVIL WRIT PETITION NO. 15278 OF 2000 concerned about how to compute the said period in the light of the statutory provision under Section 25B of ID Act.
(h) Summing up
20. (i) In the conclusion that I have arrived at, we have looked into the provisions of Section 25-B for recognizing certain fictions, which it lays down, such as when a person has not actually worked for a whole year of 365 days but works for 240 days, it shall be treated that he has worked for 12 calendar months; (ii) if within the 240 days, he has been absent on certain days such as an interrupted service on account of sickness or authorized leave or 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, they could still be counted for uninterrupted service; (iii) the leave that a workman is entitled to is in essence an authorized leave; if it is not authorized by contract or express provisions of statute, it is still recognized in Indian labour jurisprudence sourcing the right to an International Labour Organization Convention; (iv) it shall be permissible to read an international Convention into a domestic law as an accepted norm of interpretation of statutes; (v) in so stating the law, we have come to this conclusion even without reference to the interpretation that this Court has given in Raghubir Singh's case and in Panipat Cooperative Sugar Mills Ltd. by citing Rule 23 of the Minimum Wages Act. The view taken in the said judgments do lay down the correct law but I have rested the reasoning also differently in the manner referred to above, so that even for non-scheduled employments to which the Minimum Wages Act is not applicable, the workman shall be entitled to the benefit of this interpretation; (vi) in computing 240 days, only CIVIL WRIT PETITION NO. 15278 OF 2000 national holidays, gazette holidays and holidays or rest days that the workman is entitled to, having worked for 6 days in a week without break, will be counted and (vii) it is immaterial whether a workman was paid wages during the holiday or rest day. It is purely an incidental consideration but not relevant for the computation of 240 days.
VII. Present disposition
21. The answer to the reference shall, therefore, be that a workman is entitled to count the days of rest or holidays, which he is entitled to obtain by his continuous work, whether he is paid or not towards a reckoning of 240 days of continuous service for the purpose of Section 25-F of the Industrial Disputes Act.
(K. KANNAN) JUDGE December 03, 2011 Pankaj* CIVIL WRIT PETITION NO. 15278 OF 2000 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF Order : December 3rd , 2010.
CWP No. 15278 of 2000
Parties Name Executive Engineer, Public Health Division No. 1, Panipat ...PETITIONER.
VERSUS Sanjay Rana and another ...RESPONDENTS CORAM: Hon'ble Mr. Justice Mukul Mudgal, Chief Justice Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice K. Kannan.
PRESENT: Mr. Randhir Singh, Addl. A.G., Haryana, for the petitioner.
Mr. Rajbir Sehrawat, Advocate, for respondent No. 1.
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest? MUKUL MUDGAL, CHIEF JUSTICE I have gone through the two judgments, i.e., the one authored by Hon'ble Mr. Justice Jasbir Singh and the other authored by Hon'ble Mr. Justice K. Kannan. I regret my inability to agree with the view taken by Hon'ble Mr. Justice K. Kannan and concur with the view taken by Hon'ble Mr. Justice Jasbir Singh.
December 3, 2010. ( Mukul Mudgal ) Chief Justice Order of the Full Bench:
In view of the majority judgment, the question involved in the CIVIL WRIT PETITION NO. 15278 OF 2000 CWP No. 15278 of 2000 -2- writ petition is answered as under:-
That the opinion of the Division Bench in Raghbir Singh's case (supra) was not correct.
Accordingly we hold that a daily wager may be entitled to a rest day but unless and until he is paid for the said day, it cannot be counted towards computation of 240 days of continuous service to get benefit under the provisions of Section 25F of the Act." Let this matter be placed before the learned Single Bench for further proceedings in accordance with law.
( Mukul Mudgal ) Chief Justice ( Jasbir Singh ) Judge ( K. Kannan ) Judge December 3, 2010.