1. Retrenchment of badli workman — Non-compliance with Section 25F, Industrial Disputes Act — Dispute over whether 240 days of work constitutes continuous service. (Para 1 , 2 )
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1965 Supreme(SC) 96
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH AND V. RAMASWAMI, JJ.
Employers in relation to the Digwadih Colliery, Appellants
Versus
Their Workmen Respondents.
Civil Appeal No. 43 of 1964.
Advocates appeared
Mr. B. Sen, Senior Advocate, (Mr. I. N. Shroff, Advocate, with him), for Appellants.
Advocates:
B.SEN, I.M.SHROFF
B.SEN, I.M.SHROFF
Under the Industrial Disputes Act, 1947, a workman who has actually worked for 240 days within twelve calendar months is deemed to have completed one year of continuous service, regardless of interruptions, thereby entitling them to the protections against retrenchment under Section 25F.
Headnote:(A) Industrial Disputes Act, 1947 - Sections 2(oo), 2(eee), 25B and 25F - Retrenchment - Continuous service - Termination of service of a workman who worked for more than 240 days in each calendar year but with interruptions - Whether such service constitutes "continuous service" for the purpose of Section 25F - Section 25B creates a legal fiction where a workman who has actually worked for not less than 240 days during a period of twelve calendar months shall be deemed to have completed one year of continuous service - This deemed status fulfills the conditions of Section 25F regardless of interruptions in service (Paras 4, 5).
(B) Industrial Disputes (Amendment) Act, 1964 - Section 25B - Amendment consolidating previous definitions of continuous service - Does not alter the principle that 240 days of work in twelve calendar months constitutes continuous service for the purpose of retrenchment conditions (Para 6).
Facts of the case:
A badli workman was terminated without notice or compensation. The workman had worked for more than 240 days in two consecutive calendar years, although the service was interrupted by several short breaks. The employer contended that the service was not "continuous" as required by law for the application of retrenchment protections under Section 25F.
Findings of Court:
The termination of service was a case of retrenchment. Since the workman had worked for 240 days in a period of twelve calendar months, he was deemed to have completed one year of continuous service. The failure to provide notice or pay compensation as required under the law rendered the termination illegal.
Issues: Whether a workman who has worked for 240 days in a period of twelve calendar months, despite interruptions, is entitled to the protections of Section 25F of the Industrial Disputes Act, 1947.
Ratio Decidendi: Section 25B provides a statutory fiction that converts service of 240 days in twelve calendar months into "continuous service" for one complete year. This overrides the general requirement of uninterrupted service found in Section 2(eee), making the conditions of Section 25F applicable even if the service was interrupted.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Workmen contend 240 days of work satisfies Section 25F; Employers argue Section 25F requires uninterrupted continuous service as defined in Section 2(eee). (Para 3 , 4 )
3. Section 25B creates a legal fiction where working 240 days in twelve calendar months is deemed continuous service, overriding the requirement for uninterrupted service under Section 2(eee). (Para 5 , 6 )
4. For the purpose of Section 25F, a workman who has worked 240 days in twelve calendar months is deemed to have completed one year of continuous service. (Para 5 )
5. Appeal dismissed; the award of the Industrial Tribunal upholding the illegality of the termination is affirmed. (Para 7 )
6. Does continuous service under Section 25F of the Industrial Disputes Act require uninterrupted service?
No. While Section 2(eee) defines continuous service as uninterrupted, Section 25B creates a legal fiction stating that a workman who has actually worked for not less than 240 days during a period of twelve calendar months is deemed to have completed one year of continuous service. (Para 5 )
7. How does Section 25B interact with the general definition of continuous service in Section 2(eee)?
Section 25B specifically applies to Sections 25C and 25F. It converts service of 240 days in twelve calendar months into continuous service for one complete year, regardless of interruptions, making the general definition in Section 2(eee) unnecessary for this specific calculation. (Para 5 )
8. Did the Industrial Disputes (Amendment) Act, 1964 change the interpretation of continuous service for retrenchment?
No. The 1964 amendment consolidated the previous Sections 25B and 2(eee) and removed certain vagueness regarding the calculation period, but it did not change the principle that 240 days of work in twelve calendar months constitutes continuous service. (Para 6 )
Judgement
HIDAYATULLAH, J.: This is an appeal by special leave against the Award, dated August 3, 1962 of the Central Government Industrial Tribunal, Dhanbad, under the Industrial Disputes Act, 1947. The appellants are the Employers in relation to Digwadih Colliery and the respondents their workmen. The workmen did not appear in this Court. The dispute was whether the management of the colliery was justified in terminating the services of Jaldhar Singh with back wages.
2. Jaldhar Singh was a badli workman which means (as defined by the Standing Orders of the colliery) a person appointed in the post of a permanent employee or probationer who is temporarily absent. He worked as badli in the calendar years 1959 and 1960 in different capacities. His employment was, of course, not continuous and there were six breaks of one day to a seek in 1959 and eight breaks of one day to a week in 1960. However, he worked for more than 240 days in each calendar year though with these interruptions. In January 1961 the colliery terminated Jaldhar Singh s services without notice to him on payment of wages in lieu of notice or compensations. A dispute arising conciliation was attempted but failed and the reference followed.
3. Before the Tribunal the workmen claimed that Jaldhar Singh was a permanent workman while the Employers contended that he was temporary. The Employers stated that as some of the permanent staff had become surplus, there was no need of badli workmen and the termination of Jaldhar Singh s service was justified. The workmen attempted to prove that Jaldhar Singh was permanent from 1960 and produced some documents from which they asked that this inference be drawn but the Tribunal did not agree. The workmen relied in the alternative upon S. 25F of the Act because Jaldhar Singh had put in service of 240 days in each of the years and contended that as the Employers had failed to comply with the provisions of S. 25F the termination of service was illegal and unjustified. The Employers submitted that S. 25F could apply only if Jaldhar Singh had put in 240 days continuous service in any of the year 1959 or 1960.
4. The service of Jaldhar Singh was admittedly terminated as there was no work for him and not on account of disciplinary action or voluntary retirement, superannuation or ill health. This was thus a case of retrenchment as defined in S. 2(oo) of the Act. Section 25F, which was inserted as part of Chapter VI, with effect from October 24, 1953 by the Industrial Disputes (Amendment) Act, 1953 (43 of 1953) provided:
"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:
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service:
(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 service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government".
The section, if it applied, had plainly not been complied with in respect of any of the conditions precedent. Jaldhar Singh, as seen already, had not been given any notice or wages in lieu of notice or paid compensation and no notice had been served on the appropriate Government. The termination of service would, in these circumstances, be illegal. But the Employers pointed out that S. 25F required two conditions: (a) continuous service, and (b) service for not less than one year, and contended that these conditions were not fulfilled as the service was not con
