Gujarat High Court
Manharbhai Sukajibhai Baria - Deceased ... vs Deputy Executive Engineer on 28 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2973 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3051 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3053 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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MANHARBHAI SUKAJIBHAI BARIA - DECEASED THROUGH LEGAL
HEIRS & ANR.
Versus
DEPUTY EXECUTIVE ENGINEER & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,1.1
MR.ADITYA DAVDA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 28/08/2025
ORAL JUDGMENT
1. Since the issue raised in these petitions are similar, they
are being decided by a common judgment. The facts of
Special Civil Application No.2973 of 2020 of 2021 are
taken for the purpose of adjudication.
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2. Rule returnable forthwith. Learned AGP Mr.Davda
waives service of notice of Rule on behalf of respondent-
State.
3. The present petitions are filed under Article 226 of the
Constitution of India, challenging the award passed by
the learned Labour Court, Godhra, dated 08.03.2019,
whereby the reference filed by the petitioner came to be
dismissed on the ground that the petitioner failed to
establish continuity of service.
4. It is the case of the petitioner that he was engaged by
the respondent as a daily wager from 16.12.1992 in the
Irrigation Patrolling Department and had been serving
continuously at different sites. During the course of his
employment, the petitioner was not provided muster
rolls, attendance registers, weekly muster sheets, etc.
Despite having completed 240 days of service, he was
terminated on 15.06.1997 without following the due
procedure prescribed under the Industrial Disputes Act,
1947 (hereinafter referred to as 'the ID Act').
Challenging the said termination, the petitioner filed
Reference (T) No. 47 of 2000, seeking reinstatement
with all consequential benefits. The respondent
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appeared in the proceedings and filed a written
statement, contending that the petitioner had not
completed 240 days in any calendar year and had, in
fact, abandoned the service on his own, and therefore,
was not entitled to the relief sought before the learned
Labour Court. The learned Labour Court, after
considering the evidence adduced by both parties,
dismissed the reference, which is the subject matter of
challenge in the present petition before this Court.
5. Heard learned advocate Mr. Dipak Dave for the
petitioner and learned AGP Mr. Aditya Davda for the
respondent state.
6. Learned advocate Mr. Dave submits that, as per the
evidence adduced by the respondent, the petitioner had
rendered 11 days of service in the year 1992, 217 days
in 1993, 137 days in 1994, 214 days in 1995, 139 days in
1996, and 90 days in 1997. It is contended that the
petitioner fulfilled the requirement under Section 25(B)
(1) of the ID Act. Therefore, even if the petitioner did not
complete 240 days in the immediately preceding year,
his case ought to have been examined in light of Section
25(B)(1) of the ID Act, for which there is no mandatory
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condition of continuous service in the immediately
preceding year. However, the learned Labour Court has
erroneously relied on Section 25(B)(2) of the ID Act and
dismissed the reference. Learned advocate Mr.Dave
submits that that the suggestion made by the
respondent that the petitioner had voluntarily stopped
reporting to work was inadvertently accepted by the
petitioner during cross-examination. It is submitted that
the learned Labour Court has failed to consider the
violation of Sections 25(G) and 25(H) of the ID Act while
adjudicating the reference. Learning advocate Mr. Dave
submits the production application, which had been
allowed in favour of the petitioner, was not fully
complied with by the respondent. Instead, only selective
documents were produced. Despite this, the learned
Labour Court laid emphasis on the evidence of the
petitioner who is a rustic person. Learned advocate
Mr.Dave submits that in the absence of work being
offered by the respondent, it cannot be presumed that
the petitioner did not work continuously. The learned
Labour Court, instead of appreciating the entirety of
Section 25(B) of the ID Act, has mistakenly emphasized
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Section 25(B)(2) of the ID Act alone and held that the
petitioner failed to establish completion of 240 days in
the preceding year. Learner advocate Mr. Dave submits
that based on the evidence led by the respondent, the
petitioner succeeded in establishing that similar work
was being carried out through outsourcing agencies.
Despite this, the learned Labour Court committed an
error in discarding such evidence and in failing to
appreciate the violation of Sections 25(G) and 25(H) of
the ID Act. Learned advocate Mr. Dave submits that the
petitioner had rendered service for nearly five years, and
therefore, the learned Labour Court committed a grave
error in dismissing the reference. Accordingly, the
impugned award deserves to be set aside and the
present petition deserves to be allowed.
7. Per contra, learned AGP Mr. Davda appearing for the
respondent has vehemently submitted that in the
absence of proof of continuous service as contemplated
under Section 25(B) of the ID Act, no relief can be
granted to the petitioner. He submits that the petitioner,
admittedly, has not completed 240 days of continuous
service in any calendar year, which is a mandatory
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requirement under Section 25(B)(2) of the ID Act, and
therefore, being a daily wager, he is not entitled to the
relief of reinstatement. Learned a AGP Mr. Davda
submits that although the petitioner claims to have been
terminated in the year 1997, he filed the reference only
in the year 2000. Hence, the learned Labour Court was
fully justified in dismissing the reference on this ground
as well. In view of the above, learned AGP Mr. Davda
has prayed for dismissal of the present petition and for
upholding the award passed by the learned Labour
Court.
8. Having considered the arguments advanced by the
learned advocates for the respective parties, and upon
examination of the facts in each of the above-mentioned
petitions, the following position emerges:
8.1. In Special Civil Application No. 2973 of 2020, the
petitioner has alleged that he worked from the year
1992 to 1997. However, during cross-examination, the
petitioner admitted that he does not recollect the
number of days he worked in each year. It is further
admitted by the petitioner that he had voluntarily
abandoned the service. Specifically, he acknowledged
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that in the year 1994, he worked for 167 days, and in
1997, he worked for 90 days
8.2. In Special Civil Application No. 3053 of 2020, the
petitioner claimed to have worked from 15.10.1992 to
15.06.1998. However, as per his own admissions during
cross-examination, he worked for only 51 days in 1992,
82 days in 1993, 62 days in 1994, 108 days in 1995, 98
days in 1996, 98 days in 1997, and 95 days in 1998. He
clearly admitted that he did not work for 240 days in any
of the calendar years. It is also admitted that he owns 10
gunthas of agricultural land and is engaged in
agricultural activities.
8.3. In Special Civil Application No. 3051 of 2020, the
petitioner alleged that he was working from 22.08.1994
until his termination on 15.06.1997. However, during
cross-examination, the petitioner stated that he could
not recall the number of days worked between 1994 and
1997. He also admitted that no evidence was led to
establish completion of 240 days of continuous service.
Specifically, he admitted working for 23 days in 1994,
162 days in 1995, 178 days in 1996, and 115 days in
1997.
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9. Upon referring to the statements of claim filed by each
of the employees, it is evident that at no point was it the
case of the employees that the cessation of work was
due to any reason not attributable to their own conduct.
In other words, there is no specific assertion that the
discontinuation of employment was not due to any fault
on the part of the workman. In this background, if one
would refer the provisions of Sections 25(B) and 25(F) of
the ID Act, which are reproduced hereinbelow for ready
reference:-
"25B. Definition of continuous service.--For the purposes of this
Chapter,-- (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 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; (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
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(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 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 a workman employed below
ground in a 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 this 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.]
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 been paid in lieu of such notice,
wages for the period of the notice;
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* * * * *
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days' average
pay 2 [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 3 [or such authority as may be specified by the
appropriate Government by notification in the Official Gazette]."
10. Undisputedly, Sections 25(B)(1) and 25(B)(2) of the ID
Act operate in distinct fields. Section 25(F) of the ID Act
mandates that a workman must be in continuous service
for not less than one year under the employer before its
provisions are attracted. In contrast, Section 25(B) of
the ID Act provides the criteria for what constitutes
'continuous service'. Specifically, even if a workman has
not been in actual, uninterrupted employment for a full
year, he shall be deemed to have completed one year of
continuous service if he has actually worked for 240
days during the preceding 12 months. This
interpretation suggests that there is no requirement for
the workman to have remained employed for the entire
12-month period. From the language of Section 25(B)(1)
of the ID Act, it is evident that 'continuous service'
includes not only uninterrupted employment but also
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service interrupted due to certain specified reasons,
such as: sickness, authorized leave, accident, a strike
(not being illegal), a lockout, or cessation of work not
attributable to any fault on the part of the workman.
Section 25(B) of the ID Act thus provides an inclusive
and notional definition of continuous service. For the
purposes of Chapter V-A of the Act, a workman who has
actually worked for 240 days during the preceding 12
calendar months is deemed to have completed one year
of continuous service. Such service, even if interrupted
for reasons beyond the control of the workman, is still
treated as continuous. Section 25(B) of the ID Act gives
a sort of artificial definition of the expression every
completed year, because in section 25(F)(b) of the ID Act
it is suggested that it should be a service of one
complete year of continuous service. Section 25(B) of
the ID Act contains a notional definition that once 240
days service has been put in by workmen in preceding
12 months it will be deemed to continuous service for a
year. For the purpose of calculation of number of days
on which workmen has actually worked, the days to be
included are mentioned in explanation under section
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25(B). Section 25(B)(2) of the ID Act begin with the
clause "where a workman is not in continuous service
within the meaning of clause one, for a period of one
year or six months he shall be deemed to be in
continuous service under the employer-a period of one
year". Section 25(B)(1) of the ID Act suggests that
interruption on this account have to be ignored and
inspite of these interruptions an employee is required to
be treated as in a continuous service of the employer.
This court has referred the decision rendered by High
Court of Delhi in the case of Surajpal Singh Versus
The The Presiding Officer and another reported in
2005 (85) DRJ 70(DB) wherein, the word "year" is
interpreted. The Delhi High Court has held as under:-
"27. Sections 25B(1) of the Act being beneficial and welfare
provision has to be liberally and broadly interpreted, yet at the
same time we cannot amend and modify a statutory provision by
incorporating and adding words. Out role is to interpret the law
as it exists and not to add and subtract words already used by the
Legislature or usurp the role of the Legislature. The Legislature in
Section 25B(2) has referred to period of 240 days in the preceding
year following the date of termination as the criteria to determine
and decide whether a workman has been in continuous service for
a period of one year. The Legislature, however, has deliberately
not mentioned the period of 240 days during the period of one
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year as the criteria in Section 25B(1) of the Act. Section 25B(1) no
where specifies that if a workman has worked for a period of 240
days in a period of one year, he is deemed to be in uninterrupted
service for one year. The period of 240 days specified in Section
25B(2), cannot be legislated and read into sub-section (1)We
cannot, therefore, legislate and incorporate the words 240 days
into Section 25B(1) of the Act. Our judicial pen cannot write these
words into the aforesaid sub-section and read then in Section
25B(1), when the Legislature has consciously and deliberately not
used those words. The requirement of Legislature, as far as Section
25B(1) of the Act is concerned, is clear and unambiguous. It refers
to continuous or uninterrupted service for a period of one year i.e
12 consecutive months. We cannot by judicial interruption
decrease this period of 365 days to 240 days. Of course the period
of one year should be interrupted liberally as has been done in
the present judgment. The two judgments, in the case of Moti
Ceramic Industries (2000 Lab IC 1921)(Guj)(supra) and Metal
Powder Co.Ltd. (1985 (2) Lab LJ 376) (Mad)(Supra) support and
have similarly interpreted Section 25B(1) and (2) of the Act.
Bombay High Court in the case of New Great Eastern Spinning
and Weaving Co.Ltd., V/s. Vasant Mahendeo Bidia reported in
2005(1) Cur LR 50has also taken a similar view.
28. We wish to further clarify that the above interpretation is not
against workmen. The Legislature has been careful and cautious to
include certain periods like authorized leave, legal strikes, lock
outs, periods during which the employer illegally refuses to permit
the workman to do work etc. as a period during which the
workman is deemed to be in continuous or uninterrupted service.
Therefore, in a given case, a workman may have worked for in
fact less than 240 days, but after including the specified periods
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mentioned in Section 25B(1), his continuous or uninterrupted
service might be for a period of 12 consecutive months.
Accordingly, we hold that period of 240 days is not relevant as
far as Section 25B(1) is concerned as the figure 240 days is not
mentioned in the said sub-section and is mentioned only in sub-
section (2). It is not possible for this Court to legislate and add
the words 240 days in Section 25B(1) of the Act. Section 25B (2)
of the Act:
29. Sub-Section (12) of Section 25B also incorporates a deeming
fiction. As per sub-section (2) to Section 25B, if a workman has
worked for 240 days or 190 days (in case he is employed below
ground in a mine) during the period of 12 calender months
preceding the date with reference to which calculation is to be
made, he shall be deemed to be in continuous service for a period
of one year. In case of retrenchment, the reference date will be
the date on which the retrenchment order is passed. Therefore, if
a workman has worked for 240 days (190 days in case he has
worked below ground in a mine) during the period of 12 calender
months preceding the date of his retrenchment, the said workman
is deemed to have rendered continuous service for a period of one
year. Section 25B(2) refers to a period of 12 months immediately
preceding and counting back wages from the relevant date and not
to any other period of employment. If a workman has worked for
more than 240 days during this period of 12 months prior to his
retrenchment, he is deemed to be in continuous service for a year.
The words preceding the date with reference to which calculation
is to be made are not redundant or otiose. The period of 12
months mentioned in Section 25B (2) is not therefore any period
of 12 months but the immediately preceding 12 months with
reference to which calculation is to be made.
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The two clauses 25B (1) and 25B (2) in operation.
30. Section 25B(2) as per the clause itself, comes into operation
when a workman has not been in continuous service within the
meaning of Sub-Section (1) for a period of one year. However, in
practice and for all practical purposes a workman will be entitled
to protection under Section 25F of the Act, if conditions
mentioned in either of the two clauses are satisfied. The Sub-
Sections are therefore in alternative. Requirement of Section 25B
(1) is uninterrupted service for a period of one year and Sub-
Section 2 requirement is service for a period of 240 days (or 190
days in case worker is employed below ground in a mine) during
the preceding 12 calendar months prior to the date of termination/
retrenchment. By deeming fiction in Section 25B (2), the workman
who has worked for aforesaid period in the preceding 12 calendar
month prior to the date of termination/retrenchment is deemed to
have been in continuous service for not less than one year. The
two provisions, namely, of Section 25B(1) and 25B(2) are separate
and distinct. The requirements and conditions to be satisfied to
some extent are also different."
10.1. Therefore, in the considered opinion of this Court, a
workman may, in fact, have worked for less than 240
days; however, upon inclusion of the specified periods
mentioned in Section 25(B)(1) of the ID Act, his service
may still be regarded as continuous and uninterrupted
for a period of twelve consecutive months. It is
important to note that the requirement of having worked
for 240 days is not found in sub-section (1) of Section
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25(B) of the ID Act, but rather appears specifically in
sub-section (2). Therefore, it would be inappropriate to
add the words 240 days in section 25(B)(1) of the ID Act.
11. This court has also referred the decision of Apex Court
in the case of Mohanlal Versus Bharat Electronics
reported in 1981 3 SCC 225 wherein, it is held that the
language employed in sub-sections (1) and (2) of section
25(B) of the ID Act does not admit of any dichotomy.
Sub-sections (1) and (2) introduced a deeming fiction as
to in what circumstances a workman could be said to be
in continuous service for the purposes of Chapter V-A.
Sub-section 1 provides a deeming fiction in that where
the workman is in service for certain period, for that
period he shall be deemed to be in a continuous service
even if his service is interrupted on account of the
reasons mentioned which is not due to any fault on the
part of the workman. That section suggests that these
interruptions have to be ignored to treat the workman in
uninterrupted service and such service interrupted on
account of the aforementioned causes which would be
deemed to be uninterrupted would be continuous service
for the period for which the workman has been in
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service. These sub-sections mandate that interruptions
therein indicated are to be ignored meaning thereby that
on account of such cessation an interrupted service shall
be deemed to be uninterrupted and such uninterrupted
service shall for the purposes of Chapter V-A be deemed
to be continuous service i.e. only one part of the fiction.
11.1. Sub-section 2 incorporates another deeming fiction
for 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 indicating
in sub-section (1) for a period of one year or six months.
The condition provided is that commencing the date with
reference to which calculation is to be made, in case of
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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 VA. Sub-
section (2) envisages a situation not governed by sub-
section (1). And sub-section (2) 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 proceeding the relevant date being date of
retrenchment. In order to invoke the fiction enacted in
sub-section 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 facts are affirmatively answered in favour of the
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workman pursuant to the deeming fiction enacted in
sub-section 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 25F of the ID Act.
11.2. In an identical situation, the Apex Court in the case of
Mohd. Ali Versus State of Himachal Pradesh
reported in 2018 15 SCC 641 has held that the
workman though worked since the year 1980 to 1990,
however, did not complete 240 days in the immediate
preceding year of his dismissal, is not entitled to take
the benefit of provision of section 25 F of the ID Act.
11.3. This Court has also referred the decision rendered by
the Division Bench of this Court in the case of Zonal
Manager, State Bank of India Versus Modi
Rajeshkumar Shantilal reported in 2018 3 GLR 2326
wherein, in the background of facts, in the statement of
claim it is claimed that he did not only work for more
than 240 days preceding his retrenchment from
01.04.1994 to 31.12.1995 but from April, 1992 to June,
1993 he was in service except for cessation without his
fault. The Division Bench in that background has held as
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under:-
"7 While deciding the issue (A), what needs to be considered is
that the respondent workman had specifically made out a case in
the Statement of Claim that he had worked from 03.01.1989 to
31.12.1995. For the period from 01.04.1994 to 31.12.1995, he had
clearly stated that he had worked for more than 240 days. In
addition thereto it was his specific case that he was in continuous
service for over a year of service and therefore there was no
reason for applying the deeming fiction of 240 days of working
days in a period of less than a year.
7.1 Section 25-F of the Industrial Disputes Act,1947 requires the
employer to follow the procedure thereunder when a workman is
employed in an industry and who has been in continuous service
for not less than one year. "Continuous service" is defined under
Section 25-B of the Act. Section 25- B(1) suggests that the
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, authorized leave
etc. Section 25-B(2) suggests that, when he is not in continuous
service for a year then a deeming fiction of 240 days is
considered. Mr. Desai, contends that the learned Judge could not
have considered the Certificate showing the number of working
days as 319, as "that period was not a period preceding 12
months prior to retrenchment". In our opinion, this submission of
Shri Desai, is without merit. Continuous service as defined under
Section 25-B suggests the entire tenure of service continuously for
a period for which the workman has worked prior to the
relationship between the workman and the employer coming to an
end. If for a certain period the employer is in no position to
provide work, cessation of such work without the fault of the
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employee would not be an interruption in service and the
employee would be deemed to be in service for such period. It
was the case of the respondent workman here, by a positive
assertion in the Statement of Claim that not only did he work for
more than 240 days preceding his retrenchment from 01.04.1994
to 31.12.1995, but that from April 1992 to June 1993 he was in
service except for the cessation without his fault, and therefore the
case squarely fell within the domain of Section 25-B(1) of the Act.
The employer having failed to discharge its burden by producing
vouchers though so ordered under Exh.18, cannot now be heard to
say that the fiction of the employee having worked for a period of
240 days as envisaged under Section 25-B(2) of the Act would
apply. Having failed to do so, interruptions need to be ignored
and the respondent workman, as observed by the learned Single
Judge needs to be treated to be in continuous service without
interruption as defined under Section 25-B(1) of the Act. It is
relevant to note one important aspect that Section 25B(1) had
been discussed by Apex Court in case of Surendranagar District
Panchayat Vs. Dahyabhai Amarsinh reported in 2005 (8) SCC page
750. Relevant para 8 of this decision is quoted as under:
"S8. To attract the provisions of Section 25-F, one of the
conditions required is that the workman is employed in any
industry for a continuous period which would not be less
than one year. Sec. 25B of the Act defines continuous
service for the purpose of Chapter V-A .SLay -off and
Retrenchment. The purport of this section is that if a
workman has put in uninterrupted service of the
establishment, including the service which may be
interrupted on account of sickness, authorized leave, an
accident, a strike which is not illegal, a lockout or
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cessation of work, that is not due to any fault on the part
of the workman, shall be said to be continuous service for
that period. Thus the workman shall be said to be in
continuous service for one year i.e. 12 months irrespective
of the number of days he has actually worked with
interrupted service, permissible under Section 25-B.
However, the workman must have been in service during
the period i.e. not only on the date when he actually
worked but also on the days he could not work under the
circumstances set out in sub-section (1). The workman must
be in the employment of the employer concerned not only
on the days he has actually worked but also on the days
on which he has not worked. The import of sub-section (1)
of Section 25B is that the workman should be in the
employment of the employer for the continuous,
uninterrupted period of one year except the period the
absence is permissible as mentioned hereinabove. Sub-
section (2) of the Section 25B introduced the fiction to the
effect that even if the workman is not in continuous service
within the meaning of clause (i) of Section 25B for the
period of one year or six months he shall be deemed to be
in continuous service for that period under an employer if
he has actually worked for the days specified in clauses (a)
and (b) of Sub-section (2). By the legal fiction of sub-
section (2)(a)(i), the workman shall be deemed to be in
continuous service for one year if he is employed
underground in a mine for 190 days or 240 days in any
other case. Provisions of the section postulate that if the
workman has put in at least 240 days with his employer,
immediately, prior to the date of retrenchment, he shall be
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deemed to have served with the employer for a period of
one year to get the benefit of Section 25F."
7.2 What is meant by continuous service for the purpose of
Chapter VA has been defined under Section 25B.The requisites for
treating a person to be in continuous service for the requisite
period,in case of Section 25F is that either he should be in
uninterrupted service including service which may be interrupted
on account of sickness or authorized leave etc which is not due to
fault of workman or cessation of work for no fault of the
workman. If a workman completes continuous service of
employment of more than one year as is so established in the
present case, on the failure of the employer to discharge the
burden adverse inference needs to be drawn. These facts must be
reflected clearly in reference to the date of retrenchment with any
block of twelve months with reference to continuous service. In
the present case the respondent workman has established
continuous service on the test of 25(B) and therefore the deeming
fiction of completion of 240 days would not set off the fact of the
workman being in continuous service for one year including
interruptions beyond his control."
11.4. These decisions would not be applicable in the instant
case as no such type of positive assertions were made in
the statement of claim or in other pleadings.
12. In above background, in the considered opinion of this
Court section 25 (B)(2) of the ID Act, as per the clause
itself comes into operation when a workman has not
been in continuous service within the meaning of sub-
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section 1 for a period of one year. A workman will be
entitled for the protection under section 25(F) of the ID
Act, if condition mentioned in either of two clauses are
satisfied. Therefore, these sub-sections are in
alternative. Section 25(B)(1) of the ID Act requires
uninterrupted service for a period of one year and
section 25(B)(2) of the ID Act requires completion of 240
days or 190 days during the preceding 12 months prior
to the date of termination, therefore, these two
provisions are separate and distinct and requirement
and conditions to be satisfied to some extent are also
different.
13. It is the case of the petitioner that production
applications were filed during the proceedings; however,
instead of producing the complete and continuous
record, the respondent produced only selective
documents. Even assuming that to be the case, in light
of the clear admissions made by the petitioners during
cross-examination specifically, that none of them had
completed 240 days of service in any calendar year it is
the considered opinion of this Court that no adverse
inference can be drawn against the respondent on this
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ground. With regard to the alleged violation of Sections
25(G) and 25(H) of the ID Act, the petitioners have failed
to establish that any seniority list of daily wagers was
maintained, or that any junior employees were retained
in service after the termination of the petitioners. In the
absence of such evidence, the findings of the learned
Labour Court cannot be said to suffer from any illegality
or perversity. Accordingly, this Court finds no reason to
interfere with the impugned award. The petitions, being
devoid of merits, are hereby dismissed.
14. Resultantly, these petitions are dismissed.
15. Rule is discharged.
(M. K. THAKKER,J)
NIVYA A. NAIR
