Gujarat High Court

Pratapbhai Chaganbhai Patel vs Range Forest Officer on 22 June, 2022

Bench: Biren Vaishnav

     C/SCA/7631/2019                               JUDGMENT DATED: 22/06/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7631 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        PRATAPBHAI CHAGANBHAI PATEL
                                   Versus
                           RANGE FOREST OFFICER
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Appearance:
MR P C CHAUDHARI(5770) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 22/06/2022

                               ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Kurven Desai

learned AGP waives service of notice of Rule on

behalf of the respondent State.

2. With the consent of learned advocates for the

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respective parties, the petition is taken up for final

hearing.

3. By way of this petition under Article 226 of the

Constitution of India, the award of the Labour Court,

Dahod, dated 06.08.2018 passed in Reference

(L.C.D.) No.2 of 2015 is under challenge, by which,

the Labour Court had rejected the reference of the

petitioner workman.

4. The facts in brief would indicate that the petitioner

by filing a statement of claim at Exh.6, had

approached the Labour Court submitting that he was

working as a daily wager watchman since the year

1987 on a monthly salary of Rs.900/-. That he was

working for eight hours a day. It was his case that

he had completed 240 days in accordance with the

provisions of Section 25B of the Industrial Disputes

Act and his services were orally terminated on

22.08.1997. The respondent employer filed a

response by a written statement at Exh.8. It was the

case of the employer that preceding the termination,

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in the year 1998-89 the workman had worked for

200 days, in the year 1990-91 the workman had

worked for 192 days, in the year 1991-92 he had

worked for 251 days, in the year 1992-93 he had

worked for 245 days, in the year 1993-94 he had

worked for 254 days and in the year 1994-95 he had

worked for 22 days. They denied that the oral

termination was with effect from 22.08.1997. Cash

book was produced by the employer for a period of

01.08.1998 to 1994-1995 suggesting the number of

days the workman had worked. At Exh.14, the

employer had examined one Pradipsinh S. Rathod.

After discussing the evidence, the Labour Court

found that after his termination on 22.08.1997, the

reference was raised 17 years after the alleged

termination. Written arguments were perused by

the Labour Court. The Labour Court found that the

workman had worked for the period from 01.08.1988

to 30.10.1994 and preceding the termination, he had

not completed 240 days in service. This was also the

stand of the respondent-employer. The issue before

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the Labour Court therefore was whether the

termination of 22.08.1997 was bad ? Based on the

records that were produced before it, the Labour

Court found that the workman had not produced any

evidence to show that he was working from 1987 to

1997 on a monthly salary of Rs.900/-. The Labour

Court found that no evidence was produced as to

who had terminated the workman with effect from

22.07.1997 and there was no evidence to show that

he had worked for 240 days in the preceding 12

months before his termination. The Labour Court

found that at best, it was proved that the petitioner

had worked upto the year 1994 but considering the

details of working days, it was only 22 days that the

petitioner had worked for in the year of 1994-95, the

reference was rejected.

5. Mr.P.C.Chaudhary learned counsel for the petitioner

relying on a tabular chart which was referred to by

the Labour Court and also produced together in the

petition would indicate that in the years 1991-92,

1992-93 and 1993-94, the petitioner has worked for

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251, 245 and 254 days respectively.

6. Reading the definitions of continuous service under

Section 25F read with Section 25B, Mr.Chaudhary

would submit that both the definitions have to be

read conjointly and in support of his submissions, he

would rely on para 7.2 of the decision of this Court

in Letters Patent Appeal No.306 of 2008.

7. Mr.Kurven Desai learned AGP would submit that the

reference was rightly rejected since the workman

had failed to prove that he had worked preceding his

termination for a period of 240 days. Apart there

from, a delay of 17 years did not entitle the

petitioner to the benefit of reinstatement and back-

wages.

8. Perusing the breakup of number of days that the

petitioner had worked preceding his termination,

what can be seen is that going back to the year

1993-94, the petitioner had worked for 254 days.

That he had worked for 251 days in the year 1991-92

and 245 days in the year 1992-1993. Conjoint

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reading of definition of Sections 25B and 25D of the

Industrial Disputes Act, the Division Bench in case of

Zonal Manager State Bank of India v. Modi

Rajeshkumar Shantilal rendered in Letters

Patent Appeal No.12285 of 2002 considering the

definition of continuous service has held as under:

"6 Having considered the submissions of the learned advocates for the respective parties, the following issues arise for our consideration:

(A) Whether the learned Single Judge was right in his perception in relying on the certificate Exh. 25 and holding that the respondent workman has satisfied requirement of Section 25B(1) and therefore has completed continuous service preceding the date of retrenchment, and therefore there was non-compliance under Section 25-F of the Act.

(B) Whether the Industrial Tribunal and in turn the learned Single Judge while confirming the award was right in drawing an adverse inference against the appellant-employer for the purposes of holding that the respondent had completed 240 days, as the employer had failed to produce vouchers as ordered below Exh.16.

For our benefit, we reproduce hereunder Sections 25B and 25F of the Industrial Disputes Act, 1947:

"Sec.25-B. Definition of continuous service.- For the purposes of this Chapter -

i. a workman shall be said to be in continuous service for a period if he

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is, for that period, in uninterrupted service, including service which may be interrupted 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;

ii. 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 for not less than-

(a) for a period of one year, if the workman, during a period of twelve calender 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 calender 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 a mine; and

(ii) one hundred and twenty days, in any

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other case. Explanation :- For the purpose 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 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.

Section 25C xxx xxx xxx

Section 25D xxx xxx xxx

Section 25E xxx xxx xxx

Section 25F. 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

C/SCA/7631/2019 JUDGMENT DATED: 22/06/2022

been paid in lieu of such notice, wages for the period of the notice,

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

9. What is observed by the Division Bench is that the

requisite for treating a person to be in continuous

service for the period in case of Section 25F is either

he should be in uninterrupted service including the

service which may be interrupted on account of

sickness or unauthorized leave etc. which is not due

to the fault of the workman and if it is established

that he is in continuous service for more than a year,

the deeming fiction of 240 days would not set off the

fact of the workman being in continuous service for

1 year including interruptions beyond his control.

10. The facts must be reflected clearly in reference to