Bhavnagar Area Development ... vs Presiding Officer
2022 Latest Caselaw 6 Guj

      C/SCA/14297/2010                                    ORDER DATED: 03/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 14297 of 2010
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               BHAVNAGAR AREA DEVELOPMENT AUTHORITY
                               Versus
                    PRESIDING OFFICER & 1 other(s)
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Appearance:
MR AMIT M PANCHAL(528) for the Petitioner(s) No. 1
MR TR MISHRA(483) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 03/01/2022
                   ORAL ORDER

1. In the present writ petition, the petitioner has, inter alia, prayed for the following reliefs.

"10. (A) Quashing and setting aside the Award dated 23.07.2010, passed by the Presiding Officer in Reference (L.C.B) No.141/2005;

(B) Declare that the respondent is neither entitled to 25% back wages and reinstatement nor to Rs.500/- towards costs as awarded by the Presiding Officer in Reference (L.C.B.) No.141/2005;

(C) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to Stay the implementation, operation and execution of the Award 23.07.2010, passed by the Presiding Officer in Reference (L.C.B.) No.141/2005;

(D) Grant an ex parte ad interim relief in terms of prayer (C) above may kindly be granted;

(E) Pass such other further order or orders as may be deemed just and proper in the facts and circumstances of the present case;

(G) Award costs."

2. At the outset, learned advocate Mr.Panchal, appearing for the petitioner has submitted that the impugned award is an ex-parte award, since no one remained present on behalf of the respondent-workman. He has submitted that the respondent-workman in fact has voluntarily abandoned the job since, no permission was granted by the State Government for

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regularisation in service. He has submitted that the petitioner also passed a Resolution dated 12.04.2001 recommending to regularise the respondent-workman, subject to approval of the State Government. He has submitted that there was various communications entered by the petitioner before the State authorities for granting approval of regularising of the respondent workman, however no such approval was received. He has further submitted that the State Government did not respond to their correspondence and ultimately the respondent-workman voluntarily left the job. He has further submitted that the respondent-workman had not completed 240 days in the preceding year and the termination has been set aside for violation of provisions of Section 25F of the Industrial Disputes Act, 1947 (I.D. Act) which is illegal. Thus, he has submitted that the award may be set aside.

3. Per contra, learned advocate Mr.T.R.Mishra, appearing for the respondent-workman has submitted that the award does not require any interference. Learned advocate Mr.Mishra has seriously objected to the submission that the aforesaid award is ex-parte, since the respondent-workman has filed the written statement, which was examined by the Labour Court. He has submitted that the respondent-workman had worked for 240 days in a year and an evidence with regard to his appointment such as identity card etc., was produced before the labour Court, hence the award may not be set aside.

4. I have heard learned advocates appearing for the respective parties.

5. On perusal of the award of the Labour Court, it appears that the respondent was engaged as a part-time worker and

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thereafter, his case was recommended for regularization, however, the State Government did not take any decision. The case of the petitioner before the Labour Court and this court is that the respondent-workman voluntarily left the service on 07.12.2004. The perusal of the award reveals that the same is bereft of any findings with regard to the respondent-workman having completed 240 days in a year preceding his termination. The provisions of Section 25F of the I.D. Act can get only attracted, if it is proved that the respondent workman had completed 240 days in the preceding year. Reference in this regard is required to be made to the decision of the Supreme Court in the case of Mohd. Ali Vs. State of Himachal Pradesh and Ors., (2018) 15 SCC 641, in which, the Apex Court has observed thus:-

"14. It is a well known fact that the Industrial Disputes Act is a welfare legislation. The intention behind the enactment of this Act was to protect the employees from arbitrary retrenchments. For this reason only, in a case of retrenchment of an employee who has worked for a year or more,Section 25F provides a safeguard in the form of giving one month's prior notice indicating the reasons for retrenchment to the employee and also provides for wages for the period of notice. Section 25B of the Act provides that when a person can be said to have worked for one year and the very reading of the said provisions makes it clear that if a person has worked for a period of 240 days in the last preceding year, he is deemed to have worked for a year. The theory of 240 days for continuous service is that a workman is deemed to be in continuous service for a period of one year, if he, during the period of twelve calendar months preceding the date of retrenchment has actually worked under the employer for not less than 240 days.

15. In Surendra Kumar Verma and Others vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another (1980) 4 SCC 443, a three-Judge Bench of this Court has very categorically dealt with the theory of 240 days as contemplated under Section 25B of the Act. The relevant paragraphs of the judgment are reproduced hereinbelow:-

"8....The provision appears to be plain enough. Section 25-F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present Section 25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a

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period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need not be. That appears to be the plain meaning without gloss from any source.

9. Now, Section 25-B was not always so worded. Prior to Act 36 of 1964, it read as follows:

"For the purposes of Sections 25-C and 25-F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.

Explanation.--....

The difference between old Section 25-B and present Section 25-B is patent. The clause "where a workman is not in continuous service ... for a period of one year" with which present Section 25-B(2)so significantly begins, was equally significantly absent from old Section 25-B. Of the same degree of significance was the circumstance that prior to Act 36 of 1964 the expression "continuous service" was separately defined by Section 2(eee)as follows: "(eee) 'continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or lock-out or a cessation of work which is not due to any fault on the part of the workman;" Section 2(eee) was omitted by the same Act 36 of 1964 which recast Section 25-B. Section 25-B as it read prior to Act 36 of 1964, in the light of the then existing Section 2 (eee), certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one year's completed service so as to attract the provisions of Section 25-F. That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Workmen. The court said:

"On the plain terms of the Section 25-F 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 Section 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised 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 Section 25-B.

Under this section a workman who during a period of twelve calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed service in the industry. . . . The position (therefore) is that during a period of employment for less than 11 calendar

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months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of Section 25-B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more." Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25-B(2)now begins with the clause "where a workman is not in continuous service . . . for a period of one year". These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants."

16. Further, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225, in paragraphs 10 and 12 held as under:-

"10. It was, however, urged that Section 25-F is not attracted in this case for an entirely different reason. Mr Markendeya contended that before Section 25-F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25-F......

12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub- section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub- section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in sub-clause (a) of clause (2). The conditions are that commencing (sic) the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter V-A. It is not necessary for the purposes of clause (2)(a) that the workman should be in service for a period of one year. If he is in service for a

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period of one year and that if that service is continuous service within the meaning of clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)

(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)

(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25-F. On a pure grammatical construction the contention that even for invoking clause (2) of Section 25-B the workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render clause (2) otiose. The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it......"

In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period.

17. Further, it is an admitted position that though the appellant worked as such till 1991 under different work/schemes i.e. Rabi and Kharif and completed 240 days in a calendar year only during the years 1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in the year 1990 and 19.5 days in the immediate preceding year of his dismissal which is below the required 240 days of working in the period of 12 calendar months preceding the date of dismissal, therefore, he is not entitled to take the benefits of the provisions of Section 25F of the Act and Division Bench of the High Court was right in dismissing the appeal of the present appellant.

Thus, the Supreme Court has held that for attracting the vigorous of Section 25F of the I.D. Act, the respondent- workman must show that he had worked for a period of 240 days preceding one year before his termination and he has

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worked continuously as per the provisions of Section 25B of the I.D. Act. It is the case of the respondent-workman that he had filed an affidavit stating that he has worked for 240 days. The fact of having worked for 240 days in preceding year cannot be satisfied by merely filing an affidavit.

6. The Supreme Court in the case of R.M.Yellati Vs. Assistant Executive Engineer, (2006) 1 SCC 106, has held thus:-

"17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."

7. The Supreme Court has held that mere affidavits or self securing statement made by the workman will not discharge him from the burden placed by the law on him to prove that he had worked for 240 days in a given year. Thus, the Labour Court has set aside the alleged oral termination of the

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respondent-workman and directed the petitioner to reinstate with 25% of the back wages without examining the fact of completion of 240 days by the respondent- workman.

8. Accordingly, the writ petition is allowed. The impugned award dated 23.07.2010 passed by the Labour Court, Bhavnagar in Reference (L.C.B.) No.141 of 2005 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.

(A. S. SUPEHIA, J) MAHESH BHATI/52