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Himachal Pradesh High Court · body

2016 DIGILAW 2217 (HP)

Pawan Kumar v. District Manger Deptt. of Telecom

2016-10-18

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present writ petition is maintained by the petitioner against the respondents praying therein that:- "(a) writ of certiorari be issued to quash and set aside the Award dated 1.2.2013 (Annexure P-9) passed in Reference Case ID No.544/2005 by the Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh; (b) to direct the respondents to reinstate the petitioner in his service with all consequential benefits from the date of his termination i.e. 20.4.1999. 2. The petitioner has submitted that he had been working in Telecommunication Department, Hamirpur Circle as a Helper on daily rated Mazdoor in the office of Sub Divisional Officer, Telecommunication Department, Una. The services of the petitioner were terminated. He raised a Demand Notice under Section 2-A of the Industrial Disputes Act, 1947. The learned Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh passed the award against the petitioner on 01.2.2013. It has further been contended that the impugned award suffers from the material irregularities and illegalities in law and non-appreciation of oral as well as documentary evidence and also the provisions of the Industrial Disputes Act, 1947. 3. It has been alleged that the petitioner was engaged as a daily rated Mazdoor on 10.8.1996 in the respondent-department at Una (H.P.). and he worked as such till 20.4.1999, however, his services were terminated vide order 20.4.1999 illegally in violation of Section 25-F and 25-N of the Industrial Disputes Act, that too w.e.f. 08.4.1999, whereas similarly situated Mazdoors were given temporary status of Mazdoor (TSM) and subsequently they were given the status of regular Mazdoors. 4. It has been alleged that the reference was made and same was referred by the Ministry of Labour/Shram Mantralaya on 31.5.2000 and the same was received and registered in the office of respondent No.3. It has further been contended that thereafter, the petitioner filed statement of claim dated 30.10.2000 on which respondents No.1 & 2 filed its reply on 8.1.2001. 5. It has been alleged that the impugned award was answered by the learned Tribunal against the petitioner. It has also been alleged that the award is bad in law, based upon surmises and conjectures, non-appreciation of oral and documentary evidence and the provisions of Industrial Disputes Act, 1947 and the same also suffers from material irregularities and illegalities in law, error of law apparent on the face of record. 6. It has also been alleged that the award is bad in law, based upon surmises and conjectures, non-appreciation of oral and documentary evidence and the provisions of Industrial Disputes Act, 1947 and the same also suffers from material irregularities and illegalities in law, error of law apparent on the face of record. 6. It has been contended that the respondents have wrongly and illegally terminated the services of the petitioner only on the ground that the petitioner did not complete 240 days in the year 1998, which is precondition for giving temporary status to the daily rated Mazdoor like the petitioner. As per the respondents the petitioner worked only for 220 days in the year 1998, whereas as per the attendance sheets for the year, it has been established that he worked for 254 days. It has been alleged that the services of the petitioner were terminated on the sole ground that he did not work for 240 days in the year 1998. This issue was required to be determined by the learned Tribunal but the Tribunal has gone beyond the point in issue, pleadings. Written arguments were submitted by the petitioner on 2.5.2012 specifically clarifying the working days for the year 1998, but the same was ignored by the learned Tribunal. 7. It has been alleged that the attendance sheet submitted by the petitioner for the year 1997 to 1999 have been admitted to be correct by the witnesses of the respondents, which is also part of the record. 8. It has been submitted that the petitioner earlier filed CWP No.10170 of 2013 against the impugned award in the Hon'ble High Court of Punjab & Haryana and the Hon'ble Court in its order directed that the dispute arising in the Himachal Pradesh and that Court has no territorial jurisdiction to hear the matter and the petition of the petitioner was ordered to be dismissed as withdrawn on the point of jurisdiction. 9. It has been alleged that the time which has been spent in pursuing the writ petition in the Hon'ble High Court of Punjab and Haryana be excluded and the benefit of Section 14 of the Limitation Act has been prayed to be extended to the petitioner. 10. 9. It has been alleged that the time which has been spent in pursuing the writ petition in the Hon'ble High Court of Punjab and Haryana be excluded and the benefit of Section 14 of the Limitation Act has been prayed to be extended to the petitioner. 10. The Presiding Officer of the Labour Court-II, Chandigarh, while passing the Award has submitted that the workman has filed attendance-sheet from January, 1997 to February, 1999 and that the management witness has admitted these sheets to be correct. As per him those sheets show that the workman did not work in January and February, 1999. The working days from 9.4.1998 to 31st December, 1998 comes to 173 days, as per the statement. The Management witness, in his affidavit, has stated that during the period from 1.1.1999 to 8.4.1999 the petitioner worked only for 34 days. This statement of the management witness was not challenged during cross-examination before the learned Presiding Officer, who accepted the same. Further, it is contended that the petitioner during twelve calendar months preceding the date of his termination worked only for 173+34=207 days, so he is not entitled to the protection of Section 25 F. 11. In reply the respondents have denied that the Ld. Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh has committed any illegality, irregularity while rejecting the reference of the petitioner. It has been submitted that the petitioner failed to prove his case before the Ld. Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh and the case of the petitioner has rightly been rejected, as there is no merit in the case. It has been submitted that during his engagement, the petitioner has only worked for 223 days during the year 1998 and the petitioner has not completed 240 days in a calendar year. It has further been submitted that the case of the petitioner does not fall under Section 25(F) (B) of the Industrial Disputes Act, 1947, hence, no illegality has been committed by the replying respondents. 12. Heard the learned counsel for the parties. 13. The learned counsel for the petitioner has argued that the learned Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh, has failed to take into consideration the fact that the petitioner has completed 240 days in a calendar year. 12. Heard the learned counsel for the parties. 13. The learned counsel for the petitioner has argued that the learned Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh, has failed to take into consideration the fact that the petitioner has completed 240 days in a calendar year. The calculation of 240 days, as made by the learned Tribunal is un-known to law, as declared by the Hon'ble Apex Court in a case titled H.S. Rajashekara v. State Bank of Mysore and another, (2012) 1 SCC 285 , it has been held as under: "12. In Radha Raman Samanta v. Bank of India, this Court relied upon the following observations recorded in Budge Budge Jute Mills Co. Ltd. v. Workmen, to record its observations: "17....Thus a badli workman only means a person who is employed as a casual workman who is working in place of another. By virtue of the bipartite agreement published in Circular No. 18/90/20 dated 7-9-1990 of the federation of the Bank, such a badli worker is entitled to be absorbed if he completes 240 days of badli service in a block of twelve months or a calendar year after 10.2.1988. Based on the conclusion arrived at by the learned Single Judge after considering the relevant documents, the fact of the appellant's service for the required period cannot be disputed. Nomenclature of his work profile may change, but it is clear that he rendered services in a vacancy of a temporary post for more than 240 days. This is sufficient to treat him as a badli for the purpose of absorption....." 13. It is therefore clear, that for labour related matters the terms "calendar year" and "block of twelve months" are interchangeable. It would be sufficient, if the petitioner could establish, that he had rendered more than 240 days service in a "block of twelve months". This in our view should have been the determining factor in a case where the consideration pertained to the consideration of an employee's claim for inclusion in the "protected category" merely on account of having rendered 240 days service in a "calendar year". In view of the above, we are satisfied, that the petitioner fulfilled the condition of having rendered service for 240 days in a "calendar year". In view of the above, we are satisfied, that the petitioner fulfilled the condition of having rendered service for 240 days in a "calendar year". The pleadings in the instant Petition for Special Leave to Appeal, as also, the judgments and orders appended thereto do not disclose any condition to the effect, that service rendered while computing 240 days in a "calendar year", should have been rendered in the same branch of the Bank. Keeping these factual ingredients in mind, and the fact that the petitioner has been suffering litigation since the year 1999, we feel that it would not be appropriate to require the re-adjudication of the entire controversy all over again." 14. The learned Assistant Solicitor General of India, appearing on behalf of the respondents, has argued that the petitioner has not completed 240 days immediately before 12 months of the date of his retrenchment from the service, so, the benefits of Section 25 of the Industrial Disputes Act, are not applicable to him. He has relied upon a decision rendered in a case titled Mohan Lal v. Management of M/s Bharat Electronics Ltd. (1981) 3 SCC 225 . 15. In rebuttal, the learned the learned counsel appearing for the petitioner, has argued that 240 days are required to be completed in a particular year and not in the preceding year. 16. In order to appreciate the arguments adduced by the learned counsel for the parties, I have gone through the record in detail. 17. As far as 240 days in a period of twelve months is concerned, there is no dispute that the petitioner has completed such period. Learned counsel for the petitioner contended that the witness of the respondent has admitted in the cross-examination that the man-days chart, which was enclosed by the petitioner, is correct and if that is taken into consideration, the petitioner has completed 240 days immediately preceding twelve months from the date of his retrenchment. However, as per the learned Assistant Solicitor General of India, this is not the factual position. However, as per the learned Assistant Solicitor General of India, this is not the factual position. Even if this fact is not taken into consideration, the Hon'ble Supreme Court in a case titled Mohan Lal v. Management of Bharat Electronics Ltd. (1981) 3 SCC 225 , has held that 240 days are to be taken one year backward and even if the workman has not completed service for one year and he has only worked for 240 days in the previous one year under the employer, deemed to be in continuous service for one year. 18. This judgment has been considered by the Hon'ble Supreme Court again in U.P. Drugs & Pharmaceuticals Co. Ltd. v. Ramanuj Yadav and others (2003) 8 SCC 334 , the relevant extract of which is reproduced as under:- "11. Learned counsel for the appellant, however, relies upon Mohan Lal v. Management of M/s. Bharat Electronics Ltd. In that case, the Court was considering the scope of Section 25-B of the ID Act. It was observed that in order to invoke the fiction enacted in sub-section (2)(a) of Section 25-B, 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 a period of 12 months, the workman has rendered service for a period of 240 days. It was held that if these three factors are affirmatively answered in favour of the 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 25- F. In Mohan Lal's case, the appellant was employed with the respondent from 8th December, 1973. His services were abruptly terminated by letter dated 12-10-1974 w.e.f. 19-10-1974. This Court said that it is not necessary for the purpose of sub-section (2)(a) of Section 25-B that workman should be in service for a period of one year. His services were abruptly terminated by letter dated 12-10-1974 w.e.f. 19-10-1974. This Court said that it is not necessary for the purpose of sub-section (2)(a) of Section 25-B that workman should be in service for a period of one year. It was held that if he is in service for a period of one year and that service is continuous service within the meaning of sub-section (1), his services would be governed by sub-section(1) and his case need not be covered by sub-section (2). Sub-section (2) envisages the situation not governed by sub-section (1). Sub-section (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 twelve calendar months counting backward and just preceding the relevant date the date of retrenchment. These were the facts under which it was held as to how the period of 240 days was to be calculated. The decision in the case of Mohan Lal does not lay down that if a workman had worked for more than 240 days in any number of years and if during the year of his termination, he had not worked for the said number of days, he would not be entitled to the benefit of Section 25-B. The question with which we are concerned was not under consideration in Mohan Lal's case. If the viewpoint propounded by the management is accepted, then in every year the workman would be required to complete more than 240 days. If in any one year the employer gives him actual work for less than 240 days, the service of the workman can be terminated without compliance of Section 6-N of the U.P. Act, despite his having worked for number of years and for more than 240 days in each year except the last. Such an intention cannot be attributed to the U.P. Act. Such an intention cannot be attributed to the U.P. Act. In the present case, as already noticed, the finding of the labour court is that the respondents worked for more than 240 days in each year from 1983 to 1986 but not having worked for 240 days in the year of termination, the termination was held by the Labour Court not to be violative of Section 6-N. Reference may also be made to the decision in Ramakrishna Ramnath v. The Presiding Officer, Labour Court, Nagpur & Anr. where this Court observed that the provision requiring an enquiry to be made to find out whether the workman has actually worked for not less than 240 days during a period of twelve calendar months immediately preceding the retrenchment does not show that a workman, after satisfying the test, has further to show that he has worked during all the period he has been in service of the employer for 240 days in the year. The interpretation propounded for the appellant is wholly untenable. The decision in U.P. State Cooperative Land Development Bank Ltd. v. Taz Mulk Ansari relied upon by learned counsel for the appellant has no applicability since that was a case of sub-section (a) of Section 6-N and, therefore, Section 2(g) had no relevance." 19. So, as has been clarified by the Hon'ble Supreme Court, it is 240 days in a year which makes a workman entitled for the benefits under Section 25 (F) of the Industrial Disputes Act. 20. Further, the Hon'ble Apex Court in a case titled H.S. Rajashekara v. State Bank of Mysore and another, (2012) 1 SCC 285 , has held as under: "13. It is therefore clear, that for labour related matters the terms "calendar year" and "block of twelve months" are interchangeable. It would be sufficient, if the petitioner could establish, that he had rendered more than 240 days service in a "block of twelve months". This in our view should have been the determining factor in a case where the consideration pertained to the consideration of an employee's claim for inclusion in the "protected category" merely on account of having rendered 240 days service in a "calendar year". In view of the above, we are satisfied, that the petitioner fulfilled the condition of having rendered service for 240 days in a "calendar year". In view of the above, we are satisfied, that the petitioner fulfilled the condition of having rendered service for 240 days in a "calendar year". The pleadings in the instant Petition for Special Leave to Appeal, as also, the judgments and orders appended thereto do not disclose any condition to the effect, that service rendered while computing 240 days in a "calendar year", should have been rendered in the same branch of the Bank. Keeping these factual ingredients in mind, and the fact that the petitioner has been suffering litigation since the year 1999, we feel that it would not be appropriate to require the re-adjudication of the entire controversy all over again." 21. The net result of the above discussion is that the petitioner (workman) has completed 240 days in a calendar year and he was entitled for the benefits as provided under Section 25(F) of the Industrial Disputes Act. This factor admittedly the learned Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh has not taken into consideration and so the order passed by the learned Central Government Industrial Tribunal-cum-Labour Court-II, Chandigarh in Reference Case ID No.544/2005 is quashed and set-aside. It is also ordered that the respondents will re-instate the petitioner, as a daily rated Mazdoor immediately, however, with all consequential benefits, except the back wages and the petitioner is not held entitled for back wages. 22. Consequently, the writ petition is allowed and disposed of. 23. All pending applications, if any, shall also stand disposed of accordingly.