REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3803 OF 2018  

(Arising out of Special Leave Petition (C) No. 19160 OF 2015)  

Mohd. Ali            .... Appellant(s)

Versus

State of H.P. and Others               .... Respondent(s)

J U D G M E N T

R.K.Agrawal J.

1) Leave granted.

2) The present appeal has been filed against the impugned

judgment and order dated 18.11.2014 passed by the Division

Bench of the High Court of  Himachal Pradesh at Shimla in

LPA No. 209 of 2011 whereby the High Court dismissed the

appeal filed by the appellant herein against the judgment and

order  dated  07.07.2010  passed  by  learned  single  Judge  in

CWP No. 3761 of 2009.

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3) Brief Facts:-

(a) Mohd.  Ali-the  appellant  herein was engaged as Casual

Labourer in the Agriculture Seed Multiplication Farm Bhagni,

Dist. Sirmor, Himachal Pradesh on Muster roll  basis during

the year 1980.  He worked as such till the year 1991 under

different  work schemes i.e.,  Rabi and Kharif  and completed

240 days  in  a  calendar  year  during  the  years  1980,  1981,

1982 and 1986 to 1989.   

(b) It is the case of the respondents that during the period of

engagement, the appellant had worked as follows:-

S.No. Year Number of days worked 1. 1980 299 2. 1981 297.5 3. 1982 289.5 4. 1983 126 5. 1984 4.5 6. 1985 227 7. 1986 292 8. 1987 284.5 9. 1988 282 10. 1989 258 11. 1990 195 12. 1991 19.5

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It  is  further  the  case  of  the  respondents  that  thereafter  he

abandoned  the  work  without  informing  the  Incharge  Seed

Multiplication Farm Bhagani and never returned to work.   

(c) In  the  year  2005,  the  appellant  herein  made  a

representation to the State Government for making Reference

under  Section  10  of  the  Industrial  Disputes  Act,  1947

(hereinafter  referred  to  as  ‘the  Act’).   In  pursuance  of  the

Representation  made  by  the  appellant  herein,  the  State

Government  made  a  Reference  being  No.  9  of  2005  to  the

Industrial Tribunal-cum-Labour Court, Shimla.  

(d) Learned  Presiding  Judge,  gave  the  Award  dated

23.04.2009 in favour of the appellant herein and directed the

respondent-State  to  reinstate  the  appellant  in  service  with

seniority and continuity while denying the back wages.  

(e) Being  aggrieved,  respondent-State  filed  a  writ  petition

being CWP No. 3761 of 2009 before the High Court at Shimla.

Learned  single  Judge  of  the  High  Court,  by  judgment  and

order dated 07.07.2010, allowed the said writ petition and set

aside the Award dated 23.04.2009.

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(f) Being  aggrieved by  the  order  passed by  learned single

Judge, the appellant preferred a Letters Patent Appeal before

the High Court.  The Division Bench of the High Couort, vide

judgment and order dated 18.11.2014 dismissed the Letters

Patent Appeal while upholding the decision of learned single

Judge.

(g) Aggrieved  by  the  judgment  and  order  passed  by  the

Division Bench of the High Court, the appellant has preferred

this appeal by way of special leave before this Court.

4) Heard  Mr.  M.C.  Dhingra,  learned  counsel  for  the

appellant and Mr. D.K. Thakur, learned Additional Advocate

General for the respondent-State and perused the records.

Point(s) for consideration:-

5) The  short  point  that  arises  for  consideration  in  the

present  case  is  whether  in  the  present  facts  and

circumstances of the instant case, the impugned order of the

High Court calls for any interference?  

Rival contentions:-

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6) At the outset, learned counsel appearing on behalf of the

appellant argued that the dismissal of  the appellant was in

violation of the provisions of Sections 25F read with Section

25B of the Act.  Learned counsel further argued that the High

Court misinterpreted Section 25B along with Section 25F of

the Act. It was further submitted that it is not necessary that a

workman has  to  complete  the  240  days’  period  during  the

period  of  12  months  immediately  preceding  his

disengagement. Rather, he argued that inasmuch as once the

appellant completed 240 days of service in any calendar year

of his employment then he becomes entitled for the benefits of

provisions of Section 25F of the Act.  

7) Learned  counsel  appearing  for  the  respondent-State

submitted  that  the  service  of  the  appellant  herein  was  not

retrenched  but  the  appellant  herein  abandoned  the  work

himself.  Further, it was submitted that the appellant herein

approached the State Government after a delay of more than

12  (twelve)  years  which  was  not  properly  explained  by  the

appellant  herein.  Hence,  the  appellant  herein was negligent

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qua his act and no interference is sought for by this Court in

the matter.

Discussion:-

8) At  this  juncture,  in  order  to  appreciate  the  matter  in

controversy  it  is  necessary  to  reproduce  relevant  portion of

Section 25F and Section 25B of the Act which are as follows:  

“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;   * * * * * (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 continuous service or any part thereof in excess of six months; and (c)  notice  in  the  prescribed  manner  is  served  on  the appropriate  Government   or  such  authority  as  may  be specified by the appropriate Government by notification in the Official Gazette.

25B. Definition of continuous service.- For the purposes of this Chapter,- (1) a workman shall be said to be in continuous service for a period  if  he  is,  for  that  period,  in  uninterrupted  service, including  service  which  may  be  interrupted  on  account  of sickness or authorised leave or an accident or a strike which is not illegal, or a lock- out or a cessation of work which is not due to any fault on the part of the workman;

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(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he  shall  be  deemed  to  be  in  continuous  service  under  an employer- (a)  for  a  period  of  one  year,  if  the  workman,  during  a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i)  one hundred and ninety days in the case of  a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-- (i) ninety- five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case.  Explanation.- For the purposes of clause (2), the number of days  on  which  a  workman  has  actually  worked  under  an employer shall include the days on which- (i) he has been laid-off under an agreement or as permitted by standing  orders  made  under  the  Industrial  Employment (Standing Orders) Act, 1946 (20 of 1946 ), or under this Act or under  any  other  law  applicable  to  the  industrial establishment; (ii)  he  has  been  on  leave  with  full  wages,  earned  in  the previous years; (iii) he has been absent due to temporary disablement caused by  accident  arising  out  of  and  in  the  course  of  his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.”

9) It is a well known fact that the Industrial Disputes Act

is a welfare legislation. The intention behind the enactment

of  this  Act  was  to  protect  the  employees  from  arbitrary

retrenchments.  For  this  reason  only,  in  a  case  of

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retrenchment of an employee who has worked for a year or

more, Section 25F provides a safeguard in the form of giving

one  month’s  prior  notice  indicating  the  reasons  for

retrenchment to the employee and also provides for wages for

the  period of  notice.  Section 25B of  the  Act  provides that

when a person can be said to have worked for one year and

the very reading of the said provisions makes it clear that if a

person  has  worked  for  a  period  of  240  days  in  the  last

preceding year, he is deemed to have worked for a year. The

theory of 240 days for continuous service is that a workman

is deemed to be in continuous service  for  a period of  one

year,  if  he,  during  the  period  of  twelve  calendar  months

preceding  the  date  of  retrenchment  has  actually  worked

under the employer for not less than 240 days.  

10) In  Surendra Kumar Verma and Others vs.  Central

Government Industrial Tribunal-Cum-Labour Court, New

Delhi and Another (1980) 4 SCC 443, a three-Judge Bench

of this Court has very categorically dealt with the theory of

240 days as contemplated under Section 25B of the Act.  The

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relevant  paragraphs  of  the  judgment  are  reproduced

hereinbelow:-

“8….The  provision  appears  to  be  plain  enough.  Section  25-F requires that a workman should be in continuous service for not less  than  one  year  under  an  employer  before  that  provision applies. While so, present Section 25-B(2) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in  such  continuous  service  for  a  period  of  one  year,  if  he  has actually worked under the employer for 240 days in the preceding period of  twelve months. There is no stipulation that he should have  been  in  employment  or  service  under  the  employer  for  a whole period of twelve months. In fact, the thrust of the provision is  that  he  need  not  be.  That  appears  to  be  the  plain  meaning without gloss from any source. 9. Now, Section 25-B was not always so worded. Prior to Act 36 of 1964, it read as follows:

“For the purposes of  Sections 25-C and 25-F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.

Explanation.—….

The difference between old Section 25-B and present Section 25-B  is  patent.  The  clause  “where  a  workman  is  not  in continuous  service  …  for  a  period  of  one  year”  with  which present  Section  25-B(2)  so  significantly  begins,  was  equally significantly absent from old Section 25-B. Of the same degree of  significance  was the  circumstance  that  prior  to  Act  36 of 1964  the  expression  “continuous  service”  was  separately defined by Section 2(eee) as follows:

“(eee) ‘continuous service’ means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or lock-out or a cessation of work which is not due to any fault on the part of the workman;”

Section  2(eee)  was omitted  by  the  same  Act  36  of  1964 which recast  Section 25-B.  Section 25-B as it  read prior  to  Act  36 of 1964, in the light of the then existing Section 2 (eee), certainly lent

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itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one  year’s  completed  service  so  as  to  attract  the  provisions  of Section 25-F. That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Workmen. The court said:

“On the plain terms of the Section 25-F only a workman who has been in continuous service for not less than one year under an employer  is  entitled to  its  benefit.  ‘Continuous service’  is defined in Section 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. What is meant by ‘one year of continuous service’ has been defined in Section 25-B. Under this section a workman who during a period of twelve calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed service in the industry. . . . The position (therefore) is that during a period of employment  for  less  than  11  calendar  months  these  two persons worked for more than 240 days. In our opinion that would  not  satisfy  the  requirement  of  Section  25-B.  Before  a workman  can  be  considered  to  have  completed  one  year  of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not  less  than  240 days.  Where,  as  in  the  present  case,  the workmen  have  not  at  all  been  employed  for  a  period  of  12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more.”

Act 36 of 1964 has drastically changed the position. Section 2(eee) has  been  repealed  and  S.  25-B(2)  now  begins  with  the  clause “where a workman is not in continuous service . . . for a period of one year”. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period  of  twelve  months  shall  be  deemed  to  have  been  in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is  enough that  he  has  worked  for  240  days  in  a  period  of  12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants.”

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11) Further, this Court, in Mohan Lal vs. Management of

M/s  Bharat  Electronics  Limited (1981)  3  SCC  225,  in

paragraphs 10 and 12 held as under:-

“10. It  was,  however,  urged  that  Section  25-F  is  not attracted  in  this  case  for  an  entirely  different  reason.  Mr Markendeya contended that before Section 25-F is invoked, the condition  of  eligibility  for  a  workman to  complain  of  invalid retrenchment must be satisfied.  According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25-F……

12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if  the workman  during  the  period  of  12  calendar  months  just preceding the date with reference to which calculation is to be made,  has actually  worked under  that  employer  for  not  less than  240  days.  Sub-section  (2)  specifically  comprehends  a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in sub-clause (a)  of  clause (2).  The conditions are that  commencing  (sic)  the  date  with  reference  to  which calculation is to be made, in case of retrenchment the date of retrenchment,  if  in  a  period  of  12  calendar  months  just preceding such date the workman has rendered service for a period of  240 days,  he shall  be deemed to be in continuous service for a period of one year for the purposes of Chapter V-A. It  is  not  necessary for  the  purposes of  clause  (2)(a)  that  the workman should be in service for a period of one year. If he is in service  for  a  period  of  one  year  and  that  if  that  service  is continuous service within the meaning of  clause (1)  his case would  be  governed  by  clause  (1)  and  his  case  need  not  be covered  by  clause  (2).  Clause  (2)  envisages  a  situation  not governed by clause (1). And clause (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

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for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in clause (2)(a)  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  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 to the deeming fiction enacted in clause (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. On a pure grammatical construction the contention that even for invoking clause (2) of Section 25-B the workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on  the  ground  that  it  would  render  clause  (2)  otiose.  The language of  clause  (2)  is  so clear  and unambiguous that  no precedent  is  necessary  to  justify  the  interpretation  we  have placed on it……”

In view of the aforesaid principles laid down by this Court

and  also  the  categorical  findings  of  the  High  Court,  the

contention of the appellant herein is not sustainable in the

eyes  of  law  since  the  provisions  are  very  clear  qua the

calculation of period.

12) Further,  it  is  an  admitted  position  that  though  the

appellant  worked  as  such  till  1991  under  different

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work/schemes i.e. Rabi and Kharif and completed 240 days in

a calendar year only during the years 1980, 1981, 1982 and

1986 to 1989 but he worked only for 195 days in the year

1990 and 19.5 days in the immediate preceding year of his

dismissal which is below the required 240 days of working in

the  period  of  12  calendar  months  preceding  the  date  of

dismissal, therefore, he is not entitled to take the benefits of

the provisions of Section 25F of the Act and Division Bench of

the  High  Court  was  right  in  dismissing  the  appeal  of  the

present appellant.

13) In view of the foregoing discussion, we are not inclined to

interfere in the decision passed by the High Court. The appeal

is dismissed leaving parties to bear their own cost.

...…………………………………J.             (R.K. AGRAWAL)

…………….………………………J.            (S. ABDUL NAZEER)

NEW DELHI; APRIL 16, 2018.  

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