Executive Engineer, Irrigation ... vs Maroti S/O Janba Dupare
2003 Latest Caselaw 1188 Bom

JUDGMENT

S.A. Bobde, J.

1. Heard Smt. Dangre, the learned Assistant Government Pleader for the petitioners and Shri Gosavi, the learned counsel for the respondent.

2. The petitioners who are officers of the Irrigation Department have by this petition under Articles 226 and 227 of Constitution of India challenge the order dated 29-12-1990 by which the learned Labour Court Bhandara has set aside the termination of the respondent dated 1-7-1986 and granted him reinstatement on payment of 15% of back wages. Before the Labour Court, the respondent was engaged by the petitioners in the Irrigation Department from 2-2-1980 to 31-12-1985. He was terminated with effect from 1-7-1986. For sometime the respondent was engaged on regular muster roll of the department and for some time under the E.G.S. Having been terminated without compliance by Section 25-F of the Industrial Disputes Act, 1947 i.e. without having been given a notice and retrenchment compensation as contemplated by that section, and in contravention of Section 25-G, since his juniors were retained, he raised an industrial dispute. It seems, that conciliation having failed, the dispute was referred under Section 10(1) read with Section 12 of Industrial Dispute Act to the -Labour Court. There appears to have been no dispute before the Labour Court about whether the Irrigation Department is an industry.

3. On appreciation of evidence led before it, the Labour Court found that the petitioners have admitted the respondent was engaged for work on the canal for supply of water during the aforesaid period. They further claimed that there were gaps during that period. According to petitioners, the respondent had not completed 240 days of service. According to respondent, it was not necessary to comply with Section 25-F and 25-G of the Industrial Disputes Act because the respondent had not been in continuous service for a year as contemplated by those provisions. The petitioners contended that the respondent had been employed for a period of 240 days since he was not paid throughout the period of his employment by the respondent but there were periods of time when he was paid under the E.G.S. Fund under Section 12 of Maharashtra Employment Guarantee Act, 1977.

4. It appears that the petitioners produced two muster rolls, one of workman engaged by the department, and another, of those provided to the department under Employee Guarantee Scheme. The Labour Court considered both the Muster Rolls and found that after taking into account number of days on which the respondent worked both when paid by the department and when paid from the E.G.S. Fund, he had completed more than 240 days of service.

5. Mrs. Dangre, the learned Assistant Government Pleader submitted that the learned Labour Court has committed an error of law in consolidating the respondent's direct employment by the department with employment under E.G.S. Scheme. According to the learned Assistant Government Pleader, since wages to the respondent were not from the same source, he could not have been held to be in continuous service.

6. Having considered the submission and provisions of the Industrial Disputes Act, it appears that this dichotomy as regards the service of payment of wages, submitted by the learned A.G.P. has no basis. Section 25-F reads as follows:--

"Conditions precedent to retrenchment of workmen. -- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until --

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of notice;

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(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every competed 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.]

7. The condition contemplated by Section 25-F is that workman should have been in continuous service for a period in not less than one year "under the employer". The question of how the workman has been recruited or the source from which he has been paid is not relevant. Similarly, Section 25-B contemplates continuous service "under an employer". Sub-section (2) of Section 25-B, which is relevant reads as follows :--

"25-B. Definition of continuous service for the purposes of the Chapter. --

(1).......

(2) where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer --

(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than --

(i)     one hundred and ninety days in the case of a workman employed below ground in a mine; and
 

(ii)    two hundred and forty days, in any other case;
 

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than --

(i)     ninety-five days, in the case of a workman employed below ground in a mine; and
 

(ii)    one hundred and twenty days, in any other case.
 

Explanation. -- For the purposes of Clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which --
  

(i)     he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
 

(ii)    he has been on leave with full wages, earned in the previous years;
 

(iii)   he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
 

(iv)    in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.
 

8. It is clear from the aforesaid provisions that Sections 25-F and 25-G prescribe conditions precedent to retrenchment, where the workman has been continuous service for a period of one year under the employer. Therefore, if the workman has been employed in service for not less than a year as contemplated by these provisions, he cannot be retrenched without compliance of these provisions. The legislative scheme of the Industrial Disputes Act does not require that the wages received by the workman should have been from the same source while he was working under an employer for the purpose of reckoning continuous service. Employer is defined by Section 2(g), reads as follows:--

"employer means --

(i) in relation to an industry carried on by or under the authority of any department of [the Central Government or a State Government], the authority prescribed in this behalf, or where no authority is prescribed, the head of the department;

(ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority;"

9. Wages is defined by Section 2(rr) of the Act, reads as follows :--

" "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and included -

(i)     such allowances (including dearness allowance) as the workman is for the time being entitled to;
 

(ii)    the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;
 

(iii)   any travelling concession;
 

(iv)    [any commission payable on the promotion of sales or business or both;] 
 

but does not include --
  

(a)     any bonus,
 

(b)    any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
 

(c)     any gratuity payable on the termination of his service;]
 

10. It is clear from the definition of wages that all remuneration payable to workman in respect "of his employment" are defined as wages. Clause (rr) which defines wages also does not require that the remuneration must be paid to the workman from the same source. Therefore, in the present case it makes no difference if during the period in contemplation for the purposes of determining continuous employment, the respondent was paid from the Employer Guarantee Fund as long as he was in continuous employment under the same employer.

11. Hence, in view of the clear finding of fact that the respondent was employed for not less than one year continuously by the petitioners and was retrenching without compliance of Section 25-F and 25-G of the Industrial Disputes Act, the award of the Labour Court is unimpeachable. There is no error of law on the face of the Award. The petition, therefore, fails, which is hereby dismissed. Rule is discharged.