Housing Urban Dev. Corpn. vs Joginder Kumar And Ors.
2003 Latest Caselaw 26 Del

JUDGMENT

S.K. Mahajan, J.

1. RULE.

2. With the consent of the parties, the matter has been heard and disposed of by this order.

3. The respondent was engaged as a daily wager by the petitioner. The respondent worked intermittently from 16th April, 1994 till 27th September, 1995. After 27.9.1995, the respondent was not given any work and his services were discontinued. Being aggrieved by the discontinuation of his services, the respondent raised an industrial dispute, which was referred for adjudication to the Labour Court with the following terms of reference :

Whether the service of Shri Joginder Kumar had been terminated illegally and/or unjustifiably by the management? If so to what relief he is entitled and what directions are necessary in this respect."

4. By the impugned award, the Labour Court decided the reference in favor of the workman after holding that the workman was in continuous employment with the management from 15th April, 1994 till 4th January, 1995 with break in the month of November, 1994 and if the number of weekly off and holidays were counted in the number of working days for which the workman worked the same would come to be more than 240 days of continuous service and he would thus be covered by Section 25-B of the Industrial Disputes Act (in short referred to as `the Act') and was entitled to the benefits of Section 25-F of the Act. The Labour Court held that since the workman was not retrenched in accordance with Section 25-F of the Act, his termination was illegal and he was entitled to be reinstated with full back wags. The award of the Tribunal has now been challenged by way of the present writ petition.

5. The contention of learned counsel for the petitioner is that even as per the statement filed by the respondent, his services were terminated w.e.f. 28.9.1995 and he admittedly having not worked for 240 days in 12 calendar months preceding the date of his termination, he would be deemed to have not worked for a continuous period of one year and there was thus no necessity to comply with the provisions of Section 25-F of the Act. Counsel for the respondent, however, submits that the period of 240 days had to be calculated backwards from 4th January, 1995 when his services were discontinued by the petitioner. It is submitted that though he was given work again in the month of August, 1995, however, his services were terminated on 4th January, 1995 and he having continuously worked for a period of one year, in terms of Section 25-B of the Act, his services could not be discontinued otherwise than by following the provisions of Section 25-F of the Act and the Labour Court had thus rightly decided the reference in favor of the workman. Learned counsel for the respondent has relied upon the affidavit filed by him before the Labour Court wherein it is mentioned that for the period from 15.4.1994 to 4.1.1995, the workman had worked for a period of 264 days.

6. There is a dispute between the parties on the question as to whether or not the respondent had worked from 12th October, 1994 to 4th December, 1995. While the case of the management is that he had not worked from 12th October, 1994 till 4th December, 1994 and if this period was not counted, the respondent had not worked for a period of more than about 200 days even up to 4th January, 1995. I am in agreement with learned counsel for the management. The Labour Court has clearly stated in the Award that the workman had continuously worked till 4.1.1995 except for a break in the month of November, 1994. This period, therefore, could not be added in the total number of day for which the respondent had worked with the management. The management in support of its case had filed an affidavit giving details of the period when the workman had worked and it is specifically stated therein that after 12th October, 1994 the respondent was engaged to work only on 5th December, 1995 and he worked thereafter till 4.1.1995. This entire period could not be said to weekly off or holiday. It is stated in the affidavit that the respondent was being engaged to fill the water coolers during the summer seasons and work being of casual nature, his services were not required throughout the year and after 4.1.1995 he was again engaged only in the month of August, 1995 and he continued to work up to 24.9.1995. The workman while cross-examining this witness has not given him any suggestion that the workman had actually worked in the month of November, 1994 or had worked from 12.10.1994 to 4.12.1994. The statement of the management's witness about the period for which the workman had worked cannot, therefore, be ignored. However, the period up to 4.1.1995 may not be relevant for calculating the period during which the respondent had worked in one calendar year preceding the date of his termination. The respondent had in his statement of claim and the affidavit clearly stated that he was engaged on 15.4.1994 and he had worked up to 27.9.1995 and his services were terminated w.e.f. 28.9.1995 without following the provisions of the Industrial Disputes Act. Even in the paragraph claiming the relief, it is stated by the respondent that the Court should direct reinstatement of the respondent with full back wages and continuity of service w.e.f. 28.9.1995 with all consequential benefits. It is also stated in the statement of claim that the management had arbitrarily and without following the principles of natural justice terminated the services of the workman w.e.f. 28.9.1995. The contention of learned counsel for the respondent now is that there is a mistake in the date inasmuch as his services were terminated w.e.f. 5.1.1995 and not w.e.f. 8.9.1995. I am unable to agree with the respondent. While it is not only clearly stated in the statement of claim and the affidavit by the workman that the had worked up to 27.9.1995 and his services were wrongfully terminated w.e.f. 28.9.1995, but even as per the details given in the affidavit of the management, the petitioner had worked from 27.8.1995 to 27.9.995, which fact is not denied by the respondent. Even the Labour Court in his award has mentioned that the services of the petitioner were terminated w.e.f. 28.9.1995. The period of one calendar year, therefore, in terms of Section 25-B of the Act has to be counted from this date and not from 4.1.195. In terms of Section 25-B of the Act, a workman would be deemed to be in continuous service of the management if during the period of 12 calendar months, preceding the date with reference to which the calculation is to be made, he had actually worked under the management for not less than 240 days. Calculating this period from 28.9.1995, the workman has admittedly not worked for more than 100 days and there was thus no need to follow the provisions of Section 25-F of the Act. It is only in respect of a workman who had continuously worked for a period of one year that his services cannot be discontinued or terminated without following the provisions of Section 25-F of the Act. Since the petitioner was not entitled to be given either the notice pay or the retrenchment compensation in terms of the Section 25-F of the Act, in my opinion, the Labour Court has clearly erred in observing that the petitioner was entitled to the protection of Section 25-F of the Act and his services having terminated without following the said provisions, he was entitled to be reinstated with full back wages. Since, as already held above, the petitioner had not worked for 240 days in one calendar year preceding the date of his termination, in my opinion, the petitioner was justified in discontinuing his services without following the provisions of Section 25-F of the Act and the award of the Labour Court, therefore, cannot be sustained. I, accordingly, make the rule absolute and set aside the award of the Labour Court with no orders as to costs.