Reserved Judgement

THE HIGH COURT OF UTTARANCHAL AT NAINITAL.

Writ Petition (M/S) No. 1375 of 2004

(Under Art. 227 of the Constitution of India)

Bhagwan Das S/O Sri Budh Singh through Sri H.S.Jauhri

R/O A-50, Shiwalik Nagar, B.H.E.L. Hardwar.

…

Petitioner.

Versus

1.

Presiding Officer, Labour Court, Dehradun.

2.

Irrigation Research Institute, Roorkee, Haridwar

Through its Director.

….. Respondents.

Sri Pankaj Miglani, Advocate, learned counsel for the Petitioner.

Sri Nand Prasad, Learned Standing Counsel for the respondents.

Date March 21, 2006

(Hon’ble B.S. Verma, J.)

By means of this writ petition, the petitioner has

sought order or direction of this Court for setting aside the

impugned order dated 23.10.1996 passed by the respondent no.1

whereby the termination of service of the petitioner by the

employer w.e.f. 4-6-1992 was held to be legal and proper. It was

held that the petitioner had not completed 240 days in the calendar

year preceding the termination of his service.

2.

Brief facts giving rise to this writ petition are that the

petitioner worked under the employment of respondent no. 2 as

mason on muster roll as daily wager at Bahadarabad laboratory

since the year 1972. on 4-6-1992, the petitioner was removed from

service illegally without any prior notice in violation of the

provisions of Section 6(N) of the U.P. Industrial Disputes Act, 1947

( for short the Act). Aggrieved, the petitioner raised the industrial

dispute, which was referred in the following terms:-

“Whether the termination of service of labour Sri

Bhagwan Das W/O Sri Buddh Singh by the employers from 4-6-

92 is justified and/or legal? If no, to which benefit/relief the

concerned workman is entitled and to what extent?”

3.

Notice was issued to the employer, who filed its

written statement alleging therein that the petitioner had not

completed the period of 240 days in either of the calendar years

1990 to 1992, therefore, the claim of the petitioner was not

maintainable. The petitioner filed replication and stated that the

employers have not properly reckoned the working days and that

the petitioner had worked for more than 240 days. The learned

Labour Court after considering the entire material on record came

to the conclusion that the workman/petitioner had not worked for

240 days in any calendar year, therefore, by the impugned order

dated 23-10-1996, it was held that the termination of his services by

the employer was legal and valid. Feeling aggrieved, the petitioner

has come up in the writ petition.

4.

I have heard the learned counsel for the parties and

carefully perused the entire material on record.

5.

Learned counsel for the petitioner has relied upon the

U.P. Government Notification, Labour Department, Section-3 No.

1335/36-3-8 (M.W.)/89 dated July 11, 1990 issued under the

Minimum Wages Act, which is also applicable in Uttaranchal Sate

in view of U.P. Reorgnization Act, 2000. It was submitted that the

petitioner is also covered under that Notification under the

Minimum Wages Act and according to this Notification, he is

entitled for inclusion of Sundays for payment of wages for the

entire period of one month. It is evident from the said Notification

that Irrigation Department and its workmen are fully covered by

the Notification aforesaid.

6.

Learned Labour Court recorded a finding that the

workman had not worked for 240 days in any calendar year and

hence the termination order was legal and justified. A bare perusal

of the impugned order reveals that the learned Labour court only

considered 186 working days along with 30 weekly holidays with a

total of 216 days. An important aspect of this case is that the

Labour Court itself found that there was variation between the

working days as mentioned by the employer in its written statement

and the working days mentioned in the statement filed by the

employ