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Himachal Pradesh High Court · body

2010 DIGILAW 931 (HP)

State of H. P. v. Jaggi Ram And Mohammad Ali

2010-07-07

SURJIT SINGH

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JUDGMENT : Surjit Singh, J. These two writ petitions (particulars given in the heading of the judgment) are being disposed of by a common judgment, as common question of law is involved in both the petitions. These petitions have been filed by the State of Himachal Pradesh and its functionaries, under Articles 226 and 227 of the Constitution of India, for quashing awards of the Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla. 2. Jaggi Ram, respondent in CWP 3758 of 2009, was engaged as a workman on daily wage basis in the Department of Agriculture, for working in Seed Multiplication Farm, Bhagani, Tehsil Paonta Sahib, District Sirmaur, in the year 1985. He continued to work in the Seed Farm of Agriculture Department, till 1995, when, according to him, his services were terminated. He completed 240 days only in one calendar year, that is, 1987. In rest of the years, he worked for less than 240 days in every year. He claimed that his services had been dispensed with by a word of mouth. No notice, in accordance with the provision of Section 25F(a) of the Industrial Disputes Act, 1947 had been issued, nor had any compensation been paid, in accordance with Section 25F(b) of the said Act and hence, the order of retrenchment, was ultra vires and of no consequence. On respondent's asking, reference was made to the Industrial Tribunal by the Government. Reference was to the following effect: Whether the termination of services of Shri Jaggi Ram S/O Sh. Banta Singh, w.e.f. February 1995 by the Deputy Director of Agriculture, Nahan, District Sirmour, HP without compliance of Section 25F of the Industrial Disputes Act, 1947 is legal and justified? If not what relief of service benefits and amount of compensation Shri Jaggi Ram is entitled to? 3. Present writ petitioners pleaded that respondent had himself abandoned the job in the year 1985. It was stated that he had not been in continuous service for a period of one year, within the meaning of Section 25F of the Industrial Disputes Act, 1947 and hence, there was no question of non compliance of the provisions of aforesaid section. 4. In the other writ petition, i.e. writ petition No. 3761 of 2009, reference was made to the Industrial Tribunal-cum-Labour Court, Shimla by the Government to the following effect, on the asking of respondent Mohammad Ali: 5. 4. In the other writ petition, i.e. writ petition No. 3761 of 2009, reference was made to the Industrial Tribunal-cum-Labour Court, Shimla by the Government to the following effect, on the asking of respondent Mohammad Ali: 5. Respondent, Mohammad Ali, pleaded that he had been in service since 1980 and that in the year 1990, his services were dispensed with, without service of any notice, or without payment of compensation and hence, action of the writ petitioners was violative of mandatory provisions of Section 25F of the Industrial Disputes Act, 1947. 6. Plea taken by the writ petitioners before the Industrial Tribunal-cum-Labour Court, was similar to the one taken in the case of respondent Jaggi Ram, in CWP 3758 of 2009. 7. Learned Tribunal concluded that respondent Jaggi Ram, had worked for 240 days in calendar year 1987 and hence, he was in continuous service for one year, within the meaning of Section 25F and hence his retrenchment in the year 1995, without service of notice, under Clause (a) and without payment of compensation, under Clause (b) of Section 25F of the Industrial Disputes Act, 1947, was illegal. In the case of Mohammad Ali, respondent in CWP 3761 of 2009, it was held that he had worked for 240 days in calendar years 1980, 1981, 1982 and 1986 to 1989 and, therefore, his retrenchment in 1991, like that of Jaggi Ram, was illegal and in contravention of the provisions of Section 25F of the aforesaid Act. 8. I have heard the Counsel for the parties and gone through the record. 9. The only question that has been raised during the course of arguments, is whether a workman, who has not been in continuous service for one year, immediately before the date of alleged retrenchment, is covered by Section 25F of the Industrial Disputes Act, 1947, or not? Reference is required to be made to the provisions of Section 25F, as also Section 25B of the aforesaid Act, in which definition of continuous service is given, for answering the aforesaid questions. So, the two provisions are reproduced below, for ready reference: 5B. Definition of continuous service. Reference is required to be made to the provisions of Section 25F, as also Section 25B of the aforesaid Act, in which definition of continuous service is given, for answering the aforesaid questions. So, the two provisions are reproduced below, for ready reference: 5B. 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 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; (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 (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 workman employed below ground in a mine; and (ii) One hundred and twenty days, in any other case. Explanation. (i) Ninety-five days, in the case of 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; (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 (for such authority as may be specified by the appropriate Government by notification in the Official Gazette). 10. From the fact that language of Section 25F is couched in the Present Perfect Tense, it is more than clear that workman should have been in continuous service, for not less than one year, immediately preceding the date of retrenchment. Position is further clarified by language of Section 25B, particularly Clauses (a) and (b) of Sub-section (2) of Section 25B, which says that relevant period of 12 months, or six months as the case may be, is the period, preceding the date, with reference to which, calculation is to be made. 11. Position is further clarified by language of Section 25B, particularly Clauses (a) and (b) of Sub-section (2) of Section 25B, which says that relevant period of 12 months, or six months as the case may be, is the period, preceding the date, with reference to which, calculation is to be made. 11. Hon'ble Supreme Court, in The Range Forest Officer Vs. S.T. Hadimani, (2002) 3 SCC 25 , has observed that relevant period, during which workman should have worked for 240 days, is the year preceding termination of workman. Similar observation has been made by Hon'ble Supreme Court in Essen Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400 . This very view was taken by the Supreme Court in an earlier judgment in the case of Mohan Lal Vs. Management of Bharat Electronics Ltd., (1981) 3 SCC 225 12. In the present case, admittedly, respondents had not been in continuous service for one year, neither within the meaning of Sub-section (1) of Section 25B, nor had they actually worked for 240 days under the employer, during a period of twelve calendar months, preceding the date of their alleged retrenchment, within the meaning of Sub-section (2) of Section 25B and, therefore, Section 25F of the Industrial Disputes Act, 1947, was not attracted in their cases. 13. In view of the above discussion, both the writ petitions are allowed and impugned awards of the Industrial Tribunal-cum-Labour Court, Shimla, are set aside. Writ petitions are disposed of.