Municipal Corporation Of Delhi vs Jai Veer And Anr.
2003 Latest Caselaw 6 Del

JUDGMENT

S.K. Mahajan, J.

1. Admit.

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

3. The Labour Court by the impugned Award made in a reference under Section 10 of the Industrial Disputes Act had held that since the workmen had worked for more than 240 days in a calendar year previous to the date of his termination he was entitled to the compensation in accordance with the provisions of Section 25-F of the Industrial Disputes Act and that having not been done, the workmen was entitled to be reinstated with full back wages and continuity of service. The Award of the Labour Court has been challenged only on the ground that the workmen was not in continuous service for a period of one year as he had not completed 240 days of service with the petitioner in one calendar year and was thus not entitled to either the notice or retrenchment compensation in accordance with provisions of Section 25-F of the Industrial Disputes Act. For this reliance is placed by the petitioner on the statement marked as Annexure 'A' to the petitioner showing the number of days in each of the calendar year during which the workman had worked with the petitioner.

4. A perusal of the statement filed by the petitioner shows that the petitioner had worked for 58 days in the calendar year 1984, he had worked for 239 days in the calendar year 1985 and for 145 days in the calendar year 1986. Services of the petitioner were discontinued on 6th June, 1986. The definition of continuous service has been given in the Section 25-B of the Industrial Disputes Act. Section 25-B of the Act reads as under; -

(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 as 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 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) 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 the 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 cause 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.

5. The perusal of Section 25-B of the Act shows that in case the workman had i worked for 240 days during a period of 12 calendar months preceding the date with reference to which the calculation is to be made he would be deemed to have been in continuous service under the employer for a period of one year.

6. Under Section 25-F of the Industrial Disputes Act, 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 the conditions men tioned in that Section are fulfillled. Thus if workman had worked for more than 240 days in a calendar year preceding the date of his disengagement, he cannot be retrenched until the conditions mentioned in Section 25-F were fulfillled by the employer. Even in terms of Annexure 'A' filed by the petitioner the workman had actually worked for about 288 days with the petitioner corporation during the period of one year starting from June, 1985 to 6th June, 1986, when the services of the respondent were stated to have been terminated. Learned counsel for the petitioner is calculating the number of days during which the workman had worked in reference to each calendar year and not during the period of one year the preceding date of his termination. Since the workman was employed for more than 280 days during the twelve months preceding the date of his termination, in my opinion, he was entitled to the benefit of Section 25-F of the Industrial Disputes Act and that having not been done, the Labour Court was within its rights to make the award impugned by the petitioner. Contention of learned counsel for the petitioner that calendar year has to be taken as the year from 1st January to 31st December of a particular year is not supported by plain reading of Section 25-B of the Act. Since no other point has been argued I do not see any reason to interfere with the impugned award. There are no merits in this petition and the same is, accordingly, dismissed with no order as to cost.