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Recently, Division Bench of this Court has examined question that in case of daily wager, while calculating 240 days, whether weekly off and public and festival holidays are required to be included or not. The answer given by Division Bench is in negative after considering decision of Apex Court reported in AIR 1986 SC 458 and decision of this Court reported in 2006 (3) GLR page 2432. This little bit create confusion and legal complication which legal aspect required further detailed examination for legal clarification of ratio laid down by apex court in AIR 1986 SC 458 where no distinction made between daily wager and temporary employee. Both type of employees are entitled for statutory weekly off and public holiday under provisions of Minimum Wages Rules and Bombay Shops and Establishments Act and also real interpretation of section 25B(1) and (2) of ID Act, 1947. Hence this Court has considered recent decision of Division Bench of this Court in case of RANJIT NATVARLAL CHAUHAN Versus MORBI NAGAR PALIKA reported in [2011] 26 GHJ (482), Division Bench of this Court has examined question that in calculation of 240 days continuous service as required under section 25B (1) and (2) of ID Act, 1947, whether public holidays and weekly off are to be included or not. Relevant observations made by Division Bench of this Court while considering decision of this Court in case of Sihor Nagarpalika versus Natvarlal Maganlal Trivedi, 2006(3) GLR 2432; Workmen of American Express International Banking Corporation Versus Management of American International Banking Corporation reported in AIR 1986 SC 458 and observed as under:

Thus, section 25B is giving definition of continuous service. Bare perusal of aforesaid section 25B(1) suggests that for purposes of this Chapter, 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 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. Thus, as per section 25B of ID Act, 1947, a workman shall be said to be in continuous service for a period if he is, for that period, having uninterrupted service, including service which may be interrupted on account of 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 workman. Therefore, interruptions in service on account of 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 part of workman have to be ignored while considering continuous service as defined under section 25-B (1) of ID Act, 1947. Bare reading of section 25B(1) of ID Act, 1947 suggests that if workman establish before labour court that he has remained in continuous service of one year as per section 25B(1) of ID Act, 1947 and his service was not interrupted, then, question of completion of 240 days does not arise. In this case, respondent workman has established before labour court that he has remained in continuous service for a period of one year as per documents produced by petitioner establishment Exh. 12 from June, 2000 to June, 2002, workman was working as daily wager driver throughout for aforesaid period of two years and in between, his service was not terminated or interrupted for aforesaid reasons, therefore, in this case, workman has established continuous service as defined under section 25B(1) of ID Act, 1947and therefore, completion of 240 days within 12 months preceding date of termination is not required to be established independently by respondent workman as decided by this Court in case of Moti Ceramic Industries v. Jivuben Rupabhai & others, reported in 2000(2) GLR page 1558. However, considering even section 25B, if weekly off and public holidays are included, then, workman has established 240 days continuous service as per provisions of ID Act, 1947 and in view of that, contentions raised by learned advocate Mr. Dipak C. Raval on behalf of petitioner cannot be accepted and recent decision of Division Bench of this Court as referred to has not considered section 25-B(1) and (2) of ID Act, 1947 while drawing distinction and holding that daily wager is not entitled for weekly off and public holidays but temporary employees are entitled for it, because, daily wager is not receiving monthly wages and temporary employee receiving monthly wages. Such distinction has no meaning because even a daily wager, if he remains in continuous service of six days, then, he is entitled for weekly off as per statutory provisions made under rules of Minimum Wages Act, 1948 is applicable to petitioner establishment being a scheduled employment covered by Schedule under section 2(g) and Part-1. Employment in any Local Authority is covered by Minimum Wages Act, 1948. District Panchayat, Surendranagar is Local Authority and petitioner establishment, Primary Health Center being part of Local Authority namely Surendranagar District Panchayat, is covered by provisions of Minimum Wages Act, 1948. Petitioner establishment is covered by Scheduled Employment as per Schedule as referred to above and according to Gujarat Minimum Wages, Rules, 1961, rule 24 provides/suggests number of hours of work which shall constitute a normal working day. Number of hours which shall constitute a normal working day shall be 9 hours in case of an adult and 4-1/2 hours in case of a child. Rule 23 thereof provides weekly day of rest which is available to daily wager if he has been working in scheduled employment in respect of which minimum rate of wages have been fixed under Act shall be allowed day of rest every week as referred to as rest day which shall ordinarily be a Sunday but employer may fix any other day of week as rest day for any employee or class of employees in that scheduled employment. Provided that employee has worked in scheduled employment under same employer for a continuous period of not less than six days. Under Minimum Wages Act, 1948, definition of employee has been given in section 2(i). As per section 2(i) of Minimum Wages Act, 1948, employee means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates or wages have been fixed; and includes an out worker to whom any articles or materials are given out by another person, to be made up. Therefore, considering section 2(i) of said Act, any person employed for hire or reward to do any work, skilled or unskilled, manual or clerical in a scheduled employment in respect of which minimum rates or wages have been fixed is an employee within Minimum Wages Act, 1948 which includes daily wager also and it is not necessary that he must be a permanent employee. Word any used at the commencement of this definition of employee also suggests that it includes daily wager. Therefore, in aforesaid definition, there is no distinction between permanent employee and daily wager or temporary employee. District Panchayat is local authority. Petitioner PHC being part of Local Authority, is also considered to be local authority covered by Scheduled Employment and Minimum Wages fixed by State Government are applicable to local authority and accordingly, respondent workman is covered by definition of employee under section 2(i) and if he is allowed to work continuously for a period of six days, then, one rest day means rest day is statutorily available being weekly off to such employee and, therefore, while calculating or counting 240 days continuous service, actual weekly off after completion of six days for continuous service is also part of continuous service rendered by employee, therefore, weekly off must have to be considered being statutory weekly off available to employee and in respect of workman who has not been able to establish completion of actual 240 days within 12 months preceding date of termination, if he is able to establish that he has remained in continuous service of one year within meaning of section 25B (1) of ID Act, 1947, then, he is getting protection of section 25F of ID Act, 1947. This aspect is very much relevant for interpreting section 25B (1) and (2) of ID Act, 1947.

It is also necessary to note that statutory weekly off is also available when Bombay Shops and Establishments Act, 1948 is applicable to such establishment. As per section 2(6) of said Act, employee means a person wholly or principally employed, whether directly or through any agency and whether for wages or other consideration, or in connection with any establishment; and includes an apprentice but does not include a member of the employer's family. So, considering definition of employee given under section 2(6) of said Act, respondent herein is covered by said definition. As per section 2(15)(iii) of said Act, local authority means a district panchayat constituted under Gujarat Panchayats Act, 1993 (Gujarat 6 of 1962). Therefore, petitioner PHC is run and managed by District Panchayat, Surendranagar and petitioner PHC is also covered by definition of local authority as defined under sec. 2(15)(iii) of said Act. Then Bombay Shops and Establishments Act, 1948 is also applicable to petitioner establishment. As per section 2(7), employer means a person owning or having ultimate control over affairs of an establishment. As per section 2(31) of said Act, week means period of seven days beginning at midnight of Saturday. As per section 2(19) of said Act, period of work means time during which an employee is at the disposal of employer. As per section 2(11) of said Act, holiday means a day on which an establishment shall remain closed or on which an employee shall be given a holiday under provisions of said Act. Every shops and establishments shall remain closed on one day of week. Section 18 of said Act provides for holidays in a week in shops and commercial establishments. Every shop and commercial establishment shall remain closed on one day of week. Section 24 thereof provides for holidays in a week. Every employee shall be given at least one day in a week as a holiday as proviso thereto provides that nothing in said sub section shall apply to an employee whose total period of employment in any week is less than six days. sub section (2) of section 24 of said Act provides that it shall not be lawful for an employer to call an employee at, or for an employee to go to, his residential hotel,restaurant or eating house or any other place for any work in connection with business of his residential hotel, restaurant or eating house on a day on which such employee has a holiday. Sub section (3) of said section 24 provides that no deduction shall be made from wages of any employee in a residential hotel, restaurant or eating house on account of any holiday given to him under sub section (1). If an employee is employed on a daily wages, he shall none the less be paid his daily wage for holiday. Thus, as per sub section (3) of section 24 of Bombay Shops and Establishments Act, 1948 also, it is clear that even a daily wager is entitled for holiday in a week if he has worked for a period of six days in a week. Section 34 of Act provides for daily hours of work for young persons. Sub section (1) thereof provides that notwithstanding anything contained in this Act, no young person shall be required or allowed to work whether as an employee or otherwise, in any establishment for more than six hours in any day and sub section (2) thereof provides that no young person shall be required or allowed to work whether as an employee or otherwise, shall be required or allowed to perform such work as may be declared by State Government by notification in Official Gazette, to be work involving danger to life, health or morals. As per section 31(1) thereof, every employee in a theatre or other place of public amusement or entertainment shall be given at least one day in a week as a holiday. In short, petitioner establishment is covered by definition of local authority because it is run and managed by District Panchayat Surendranagar and Bombay Shops and Establishments Act, 1948 is applicable to petitioner establishment and after completion of continuous work of six days, one day statutory holiday is available to an employee as given holiday and for that, employee is entitled for it with wages and if statutory holiday with wages is available under Minimum Wages Rules and Bombay Shops and Establishments Act, then, that day of holiday must have to be counted and included while calculating and counting 240 days continuous service under section 25B(1) and (2) of ID Act. Even sub section (3) of section 31 of Bombay Shops and Establishment Act also provides that if an employee is employed on daily wage, he shall nonetheless be paid his daily wage for the holiday given to him which means that even daily wage employees are also entitled for such holidays in a week. The law is not distinguishing that particular class of workman only would be entitled for such benefit of public holidays and festival holidays. Even section 2(s) of ID Act, 1947 which is defining workman is also not drawing any such line of distinction. This aspect has lost sight by Hon'ble Division Bench of this Court while considering and holding that decision of this Court in case of Sihor Nagarpalika versus Natvarlal Maganlal Trivedi, 2006(3) GLR 2432 is not deciding correct law. Decision of Hon'ble apex court in case of Workmen of American Express International Banking Corporation Versus Management of American International Banking Corporation reported in AIR 1986 SC 458 has also not been properly considered by Hon'ble Division Bench of this Court because in that decision, Hon'ble apex court has considered section 25B(1)&(2) of ID Act, 1947 and on that basis, weekly off being statutorily are available to workman under provisions of various labour laws and they are required to be included while calculating 240 days continuous service. But in case of Workmen of American Express International Banking Corporation Versus Management of American International Banking Corporation reported in AIR 1986 SC 458, there is no such distinction drawn by Hon'ble Supreme Court as understood by Hon'ble Division Bench of this Court that daily wager employee is not entitled for weekly off and only temporary employees are entitled for weekly off. This distinction was not there in decision of apex court in case of Workmen of American Express International Banking Corporation Versus Management of American International Banking Corporation reported in AIR 1986 SC 458 and even sec. 2(s) of workman which is giving definition of workman is also not drawing any such distinction. Hence, such distinction which has been made out by Hon'ble Division Bench of this Court was not the issue examined by Hon'ble Supreme Court in case of Workmen of American Express International Banking Corporation Versus Management of American International Banking Corporation reported in AIR 1986 SC