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High Court Of Calcutta
Debasish Kar Gupta, J.
BALMER LAWRIE AND CO.LTD. - Appellant
Versus
FIRST INDUSTRIAL TRIBUNAL OF WEST BENGAL - Respondent
C. O. 20619 (W) Of 1995
Decided On : 09/20/2006
INDUSTRIAL DISPUTES ACT, 1947 - S. 25B(2)(A)(II) - CONTINUOUS SERVICE - CALCULATION - SUNDAYS AND PAID HOLIDAYS - WORKMAN ENTITLED TO WAGES FOR SUNDAYS AND PAID HOLIDAYS - TO BE INCLUDED IN CALCULATING CONTINUOUS SERVICE.
Fact of the Case:
A workman, employed as a clerk in the Tea Export Division Godown of the petitioner company, was terminated from service without issuing any chargesheet. The workman approached the State Government for settling the dispute, which was referred to the Industrial Tribunal. The Tribunal held that the workman was not a casual worker but a permanent employee having lien on service and that the termination of his service was bad in law. The petitioner company challenged the award of the Tribunal.
Finding of the Court:
The Court held that the Tribunal was in error of law in taking into account the unpaid Sundays and holidays at the time of calculating actual working days of the workman in a year. The Court further held that in order to count the number of days "actually worked under the employer", in addition to those days when the workman worked, Sundays and holidays during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing order etc., are to be taken into account.
Issues: Whether Sundays and other holidays should be included in counting the actual working days for the purpose of determining continuous service under Section 25B(2)(A)(II) of the Industrial Disputes Act, 1947.
Ratio Decidendi: The Court relied on the decision in Workmen of American Express International Banking Corporation [(1985) 4 SCC 71] to hold that the expression "actually worked under the employer" in Section 25B(2)(A)(II) of the Industrial Disputes Act, 1947, cannot mean those days only when the workman worked but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract or service or by compulsion of statute, standing orders etc.
Final Decision: The Court set aside the award of the Tribunal and remitted the matter back to the Tribunal with a direction to calculate the actual number of working days of the workman during the relevant period taking into consideration the actual working days and the paid Sundays and other paid holidays.
( 1 ) THE petitioner company files this writ application challenging the award dated July 4, 1995 passed by the First Industrial Tribunal, West Bengal and published by the Government as per Order No. 1663-I. R. dated August 7, 1995.
( 2 ) THE respondent No. 3 was a clerk in the Tea Export Division Godown of the petitioner company. He was appointed by the respondent company in the above post on September 11, "1986. His service was terminated by the respondent on June 4, 1988. The respondent No. 3 approached the State government for settling his dispute. Ultimately, the Government of West bengal, Labour Department by an order dated March 16, 1991 referred the dispute to the respondent No. 1, i. e. the First Industrial Tribunal, West bengal under section 10 read with section 2a of the Industrial Disputes Act, 1947 for adjudication of the following issue: "whether the termination of service of respondent No. 3 was justified? to what relief, if any, is he entitled?"
( 3 ) THE stand taken by the respondent No. 3 before the respondent Tribunal was that he was a permanent employee under the petitioner company. His service was terminated by the respondent company without issuing any chargesheet. He had E. S. I. Card. He was covered by P. F. schemes. He used to get bonus, dearness allowance and house rent allowance. As such he had a lien on the service. So, the respondent No. 3 prayed for his reinstatement in the service with back wages before the respondent Tribunal.
( 4 ) THE case of the petitioner company before the respondent Tribunal was that the respondent No. 3 was a casual worker on a daily rate basis. He was paid @ Rs. 25 per day. He had. worked less than 240 days in a calendar year during the tenure of his deployment under the petitioner company. Since the respondent No. 3 was a casual worker no disciplinary proceeding was required to be initiated for termination of his service.
( 5 ) WHILE considering the validity of order of termination of service of the respondent No. 3, the respondent Tribunal decided that the Sundays and other holidays should have been included in counting the actual working days. In that event it would transpire that the concerned workman worked for more then 240 days in a year. 'on the basis of the above observation the respondent Tribunal held that the respondent No. 3 was not a casual worker. Rather he was a permanent employee having lien on service. The learned tribunal further held that since no chargesheet was issued in terminating of the services of the respondent No. 3, the order of termination was bad and not tenable in law. The respondent Tribunal further came to the conclusion that the respondent No. 3 was entitled to get reinstatement with full back wages and other benefits.
( 6 ) MR. Arunava Ghosh, learned Advocate appearing on behalf of the petitioner company, submits that the impugned order cannot be sustained in law. Relying upon the provisions of section 25b (2) (a) (ii) of the Industrial disputes Act, 1947, Mr. Ghosh submits that the respondent Tribunal was in error of law in deciding that the Sundays and other holidays should have been included in actual working days. He further submits that in determining the question as to whether the respondent No. 3 was a permanent employee under the petitioner company payment of bonus, dearness allowance, house rent allowance or extending the benefit of E. S. I, scheme or P. F. scheme were extraneous considerations. Casual workman is also entitled to those benefits. Mr. Ghosh submits the paid Sundays and holidays were required to be taken into consideration in counting the actual number of days worked by the workman under the employer for the purpose of section 25b (2) (a) (ii)of the Industrial Disputes Act, 1947. Mr. Ghosh further submits that from pay roles, it appears that in counting the working days of the respondent no. 3, the paid Sundays and paid holidays were taken into account but the unpaid Sundays and holida
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