Notional breaks in service cannot be ignored to compute the period of continuous service under section 25-B of the Industrial Disputes Act, 1947.

M.M.Punchhi, J.

1. This judgment shall dispose of Civil Writ Petition Nos. 82 and 1457 of 1985 since the petitioner is common and the points raised therein too are common.

2. In Civil Writ Petition No. 82 of 1985, the petitioner withheld from respondent No. 2 on the ostensible premises that the latter being a casual workman need not continuously kept employed. The workman, on the other hand assumed himself to be a permanent employee and raised an industrial dispute on the stance adopted by the management. The matter was referred to the Industrial Tribunal, Faridabad. When the parties came to grips with each other, the only issue framed was "whether the termination of service of Shri Nand Kumar was justified and in order ? If not, to what relief is he entitled ? The Tribunal vide award dated December 14, 1984, took the view that the workman had rendered 225 days service during the period October 3, 1981 to December 1, 1982, and as such, though strictly not in continuous service entitling him to the benefit of section 25 of the Industrial Disputes Act, 1947 , but was, otherwise an instance of an unfair labour practice. Support for the view was taken from a judgment of a Division Bench of this Court in Kapurthala Central Cooperative Bank Limited, Kapurthala v. The Presiding Officer, Labour Court, Jalandhar, I.L.R. (1984) 2 Punjab & Hary. 353. The Tribunal took the view that the aforesaid case fully applied to the facts of the case in hand and thus held that the termination of the service of the workman by the management was illegal, as on the basis of notional breaks in service the period was shown less than 240 days.

3. In Civil Writ Petition No. 1457 of 1985 likewise the respondent-workman Satish Chand had worked for 210-1/2 days within a period of 21 months. The claim of the workman here as well was that he was permanent employee at a fixed monthly salary. Likewise, the Tribunal vide order dated September 14, 1984, relying on Kapurthalka Central Cooperative Banks case (supra), held that the termination of the service of the workman by the management was illegal because on the basis of the notional breaks in service the period was less than 240 days.

4. The view of the Tribunal in both cases is open to challenge, primarily on the ground that the said precedent has totally been misunderstood by the Tribunal, for, in no case have the notional breaks in service been nullified in that case to sum up the period of service to be above 240 days and continuous in terms of section 25-B of the Industrial Disputes Act, 1947 .

5. In Kapurthala Central Cooperative Banks case (supra), the judgment which I had prepared this court had nowhere been called upon to interpret section 25 B of the Industrial Disputes Act, so as to read therein notional breaks of service to be no breaks at all. Nowhere had this Court ever intended to hold, and in fact has not held, that a different standard or method is employable to compute 240 days service, otherwise than the manner in which it is computable under section 25-B of the Act. Plain language of the section raises a fiction, which starts from ascertaining the date from which it is raisable. The relevant date is the date of termination of service, which is complained of by the workman as retrenchment. When once a date is ascertained, then one has to move backwards to a period of 12 months preceding the date of retrenchment and then ascertain whether within the period of 12 months the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant of the deeming fiction, 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. Thouse 240 days need not continuous; they may have breaks, but in the preceding 12 months from relevant date total service period should be 240 days actually worked by a workman. In the aforesa