Surya Prakash vs Management And 7 Ors.
2005 Latest Caselaw 629 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the award dated 17th April 2003 delivered by the Labour Court No. 1 by which the petitioner's services were held to be terminated during the period of probation and thus he was held to be governed under the exception to the definition of retrenchment under Section 2(oo)(bb) of the Industrial Disputes Act (hereinafter referred to as the Act). The said section reads as follows:

"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---

...... .....

(bb) termination of the service of a 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

......... ....... "

2. The petitioner was working as a peon with the respondents w.e.f. 12th September 1989 and worked up to 18th June 1990 continuously and without any break. He had worked as daily wager and on 8th May 1990 he was issued an appointment letter. He was working satisfactorily as daily wager. The relevant clause in the said clause relied upon and extracted by the Labour Court reads as follows:

You will be on probation for a period of one year which may be extended at the absolute discretion of the management. On satisfactory completion of the period of probation, your services will be confirmed in writing"

3. There was no charge sheet or show cause as the termination was termed as arbitrary and illegal in the statement of claim filed by the petitioner. On 14th January 2001 the reference for industrial adjudication was made on the following terms:

"Whether the services of Shri Satya Prakash have been terminated illegally and/or unjustifiably by the management and, if so, to what relief is he entitled and what directions are necessary in this respect?"

4. The Tribunal has relied upon section 2(oo) and held that this was not retrenchment under the Act and found that the termination under Section 2(oo)(bb) of the Act was governed under exception to Section 2(oo) of the Act. Consequently the claim of the petitioner herein was rejected.

5. It was this award dated 17th April 2003 which was challenged in the present petition by the petition who has contended that the Tribunal has lost sight of the definition of retrenchment under Section 2(oo) which is extracted hereinabove.

6. Learned counsel for the respondent has also relied upon Section 2(oo)(bb) of the Act and has thus relied upon the fact that the petitioner has not completed services for a period of calender year i.e. 12 months and accordingly was not entitled to the benefit of Section 25 of the Act.

7. In my view the plea relating to Section 2(oo)(bb) cannot be attracted in the present case. This section stipulates that the termination of the services of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on the expiry of such contract under a stipulation in that behalf contained therein. The Tribunal has relied upon the fact that since the termination was under clause 3 of Ex. MW 1/1 which provided that the services can be terminated 24 hours notice, the petitioner was not entitled to avail of the benefit of Section 25F of Act. Thus, the question which arose for discussion that clause 3 provided for termination of service by giving 24 hours notice. The said clause reads as under:

"3. Your services can be terminated by giving 24 hours notice during the period of probation. After confirmation your services may be terminated by giving one month's notice or one month's salary in lieu thereof or in case you desire to leave the services of the Council you shall have to give one month's notice in writing."

8. The provisions of section 25F of the Act are available to an employee who has put in 240 days of service. The is no dispute in the present case that the petitioner had worked for more than 240 days with the respondent. The petitioner joined on 12th September 1989 and the appointment letter was issued on 8th May 1990 and the petitioner thus continued in service till 18th June 1990. Learned counsel for the respondent submitted that 240 days is only available if a full calender year service is put in be the petitioner. Section 25B(2)(a) of the Act reads as under:-

"25B. Definition of continuous service --- For the purposes of this 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 niney days in the case of a workman employed below ground in a mine; and

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

........."

9. The above section itself shows that it contains a notional definition of continuous service for a year once 240 days service has been put in by the workman in the preceeding 12 calender months. Since the petitioner had put in 240 days of services in the last 12 months, he was entitled to the benefit of the definition of deemed continuous service. The Section 25B(2)(b) itself shows that there is deemed employment for a year when 240 days service has been put in and one calender year had not elapsed Reliance by the learned counsel for the respondent has been placed in Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen reported as 1964 SCR (3) 616 . The relevant position of the law laid down in the above judgment is as follows:

"..... On the plain terms of the section only a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. "Continuous Service" is defined in s. 2(ccc) as meaning uninterrrupted service and includes service which may be interrupted merely on account of sickness sor 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. What is meant by one year of continuous service has been defined in s. 25B. Under this section a workman who during a period of twelve calender months has actually worked in a industry for not less than 240 days shalal be deemed to have completed one year of completed service in the industry. ....... "

This judgment far from coming to the aid of the respondents in fact supports the plea of the petitioner and indicates clearly that a workman who had worked not less than 240 days in a period of 12 preceding months was deemed to have completed one year service. The position of law laid down was that 240 days service should be within the last 12 calendar months which is the undisputed factual situation in the present case.

Accordingly there is merit in the writ petition and the award thus cannot be sustained and is accordingly set aside.

The parties shall appear before the Tribunal on 25th May 2005 for adjudication on merits. Since the petition was pending in this Court for more than one year, the Tribunal may dispose of the reference expeditiously and not later than 31st December 2005.