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2009 DIGILAW 458 (ALL)

CHHOTE LAL v. REGIONAL MANAGER BANK OF BARODA

2009-02-09

TARUN AGARWALA

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TARUN AGARWALA, J. ( 1 ) HEARD Sri Dharmendra Singh, holding the brief of Sri Kuldeep Jauhari, the learned counsel for the petitioner and Sri Ashish Srivastava, holding the brief of Sri Vipin Sinha, the learned counsel for the respondent bank. ( 2 ) THE petitioner has challenged the validity and legality of the award whereby his claim with regard to the validity of his order of termination was rejected by the Industrial tribunal, New Delhi. The facts leading to the filing of the writ petition is, that the petitioner was appointed as a peon allegedly w. e. f. June 10, 1991 and worked for a limited period of time and thereafter his services was dispensed with. It is alleged that the petitioner was re-engaged and eventually worked till November 14, 1994 when his services was terminated without any prior notice. The petitioner contended that he had worked for more than 240 days in a calendar year and, therefore, his services could not be terminated without complying with the mandatory provisions of issuing notice and payment of retrenchment compensation which had not been done. ( 3 ) THE petitioner being aggrieved by his alleged termination of services, raised a dispute which was referred by the Ministry of Labour to the Industrial Tribunal, in the year 1997. Before the Tribunal the employers, namely, the bank, denied the claim of the petitioner and submitted that he had never worked as a permanent peon nor had he completed 240 days in a calendar year. ( 4 ) THE Industrial Tribunal after considering the evidence on record passed an award dated February 23, 2004 rejecting the claim of the petitioner holding that the workman had not worked for 240 days in a calendar year and therefore, the provision of section 25-F of the Industrial Disputes Act was not attracted and that the petitioner was not entitled for the payment of retrenchment compensation, etc. The petitioner, being aggrieved, has filed the present writ petition. ( 5 ) HEARD the learned counsel for the parties. A perusal of the written statement and the rejoinder statement filed by the petitioner indicates the number of days which the petitioner had worked from 1991 till the date of his alleged termination, i. e. , November 14, 1994. The petitioner, being aggrieved, has filed the present writ petition. ( 5 ) HEARD the learned counsel for the parties. A perusal of the written statement and the rejoinder statement filed by the petitioner indicates the number of days which the petitioner had worked from 1991 till the date of his alleged termination, i. e. , November 14, 1994. Further, the rejoinder affidavit indicates not only the number of days which he had worked but also indicates the payment which he had received from the employer for the number of days the petitioner had worked. A perusal of paragraph 13 of the rejoinder of the workman filed before the Tribunal indicates that he had worked for 295 days from December 8, 1993 to november 14, 1994. The workman has alleged in the said paragraph that not only he had worked for those days but was also paid and that the statement is based on the basis of the payment vouchers. ( 6 ) IN spite of this specific averment being made by the petitioner, the Tribunal has given a finding that the petitioner has worked for 202 days between November, 1993 to October 1994 which apparently appears to be based on surmises and conjectures. The conclusion drawn by the Tribunal does not appear to be borne out from the records. It appears that the finding of having worked for less than 240 days is made on the basis that 12 calendar months has to be calculated from 1st January to 31st december. In my opinion, this basis is patently erroneous. ( 7 ) IN Mohan Lal v. Management of Bharat electronics Ltd. , AIR 1981 SC 1253 : (1981)3 scc 225 : 1981-II-LLJ-70, the Supreme Court held that 240 days in a calendar year has to be counted starting from the date of termination and then counting 12 months backwards and if the workman had worked for 240 days in those 12 months in that event, by a deeming eviction, the workman would be deemed to be in continuous service of one year. The Supreme court held at p. 78 of LLJ: "14. We have already extracted Section 25-B since its amendment and the change in language is the legislative exposition of which note must be taken. The Supreme court held at p. 78 of LLJ: "14. We have already extracted Section 25-B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in surendra Kumar Verma v. Central government Industrial-cum-Labour Court, new Delhi, AIR 1981 SC 422 : (1980) 4 scc 443 : 1981-I-LLJ-386, CHINNAPPA reddy, J. , after noticing the amendment and referring to the decision in Sur Enamel and stamping Works (P) Ltd. v. Workmen AIR 1963 SC 1914 : 1963-II-LLJ-367 held as under "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. " in a concurring judgment PATHAK J. agreed with this interpretation of Section 25-B (2 ). Therefore, both on principle and on precedent it must be held that Section 25-B (2)comprehends a situation where a workman is not in employment for period of 12 calendar months but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i. e. the date of retrenchment. If he has he would be deemed to be in continuous service for a period of one year for the purpose of Section 25-B and Chapter va. " ( 8 ) IN the light of the aforesaid judgment, the Industrial Tribunal is required to calculate 240 days starting from the date of the termination and going backwards 12 months which has not been done. This calculation is required to be based on the basis of the payment vouchers issued by the bank and such other evidence which the parties may place before the tribunal. This calculation is required to be based on the basis of the payment vouchers issued by the bank and such other evidence which the parties may place before the tribunal. ( 9 ) IN view of the aforesaid, the award of the Tribunal is manifestly erroneous in law and cannot be sustained and is quashed. The writ petition is allowed. The matter is remitted again to the Industrial Tribunal with a direction to re-decide the matter within a period of six months from the date of the production of a certified copy of this order. .