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CASE NO.: Appeal (civil)  7908 of 2004

PETITIONER: Administrator, Kamala Nehru Memorial Hospital

RESPONDENT: Vinod Kumar

DATE OF JUDGMENT: 08/12/2005

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

        This appeal is directed against the judgment of the  learned Single Judge of the Allahabad High Court.  The  learned Single Judge held that the termination of services  of the respondent was contrary to the provisions of Section  6(N) of the Uttar Pradesh Industrial Disputes Act, 1947 (in  short the ’U.P. Act’).  Directions were given for  reinstatement with continuity of service and 50% of the back  wages from the date of termination of the services till the  date of award.   

       Background facts in a nutshell are as follows:

       On the basis of a dispute raised by the respondent a  reference was made by the State Government to the Labour  Court, Allahabad for adjudication of the following question:

       "Whether the termination of services of its  workman Vinod Kumar, Clerk w.e.f. 22.10.82 by  the employer is proper or legal? If no, the  benefit/relief the concerned workman is entitled  for the other with details?"

       The respondent’s case as set up in the dispute and as  was canvassed before the labour court was that he was  employed by the appellant (hereinafter referred to as the  ’employer’) on 16.9.1980 as a clerk and had continued till  21st October, 1982 with some breaks.  According to him he  had worked for 240 days continuously in one calendar year  and, therefore, was entitled to the protections of Section  6(N) of the U.P. Act.  The Labour Court held that the  respondent had not established his claim.  It was noticed  that the respondent was appointed for a limited period and  after the expiry of that period he was removed from job.  On  the basis of subsequent applications appointments used to be  given and he used to get engagement accordingly.  He  remained in continuous service only for 5 months.   Therefore, though he may have worked for 240 days or more  during the period of his service he had not remained in  continuous service for one year.  The labour court found  that he was engaged for a special work.  Aggrieved by the  order of the Labour Court a writ petition was filed by the  respondent.  The High Court held (without indicating as to   which provision it was referring to) that the amendment

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brought in the Industrial Disputes Act, 1947 (in short the  ’Act’) is prospective and not retrospective.  Reference was  made to several decisions of various High Courts to hold  that since amendment brought in the Act was prospective, the  view taken by the Labour Court that the respondent had not   completed 240 days’ continuous service in one calendar year   suffers from manifest error of law and therefore, was liable  to be set aside.

       In support of the appeal, learned counsel for the  appellant submitted that though some changes were introduced  in the Act, so far as Section 6(N) of the U.P. Act is  concerned the same was not amended and continued as before.   The definition of "continuous service" is given in Section  2(g) of the U.P. Act and the same was clearly not applicable  in case of the respondent. It was further submitted that the  view expressed by the High Court regarding entitlement of  respondent under Section 17-B of the Act is contrary to  facts.  

       Learned counsel for the respondent on the other hand  submitted that reference was made though it was not  specifically mentioned by the High Court to Section 2  (oo)(bb) of the Act which was amended and the same was  prospective and, therefore, the High Court’s view is  correct.   

       In order to appreciate rival submission reference to  Sections 2(g) of the U.P. Act and Section 25-B of the Act is  necessary.  The definitions read as follows:  

               U.P. Act         "Section 2(g): ’Continuous Service’ means  uninterrupted service, and includes service  which may be interrupted merely on account of  sickness or authorized 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, and 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."

Act Section 25-B: 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;  (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 -

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(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 purpose 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 year;  (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."  

       In view of the clear definition of the continuous  service in Section 2(g) which means uninterrupted service of  not less than 240 days in one completed year, the respondent  was clearly not entitled to any relief.  The interruptions  which are excluded while computing the uninterrupted service  are set out in the Section itself. They are on account of  sickness or authorized 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.   Further Section 2(g) provides that worker who during the  period of twelve calendar months has actually worked in an  industry for not less than 240 days shall be deemed to have  completed one year of continuous service in the industry.   As a matter of fact the Labour Court has found that the  respondent had worked for 5 months which is undisputedly  less than 240 days. The High Court seems to have adopted the  definition given in Section 25-B of the Act, which is  clearly impermissible. Definition of "Continuous Service"  given in Section 25-B of the Act is different from the

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definition of the said expression given in Section 2(g) of  the U.P. Act. By Act 36 of 1964, with effect from  19.12.1964, the definition in Section 25-B was substituted.  Prior to that the definition of "Continuous Service" was  same in the Act and the U.P. Act. Section 2(eee) of the Act  was omitted with effect from 19.12.1964 and changes were  introduced in Section 25-B of the Act. But Section 2(g) of  the U.P. Act remain unaltered. As per the pre-amended  position it was necessary for the workman to continue in  service in the 12 calendar months period to have actually  worked for at least 240 days. After the amendment the  position is different. But the earlier position remains the  same so far as the U.P. Act is concerned.   That being the  case the High Court’s judgment is clearly unsustainable and  is accordingly set aside.  

        The High Court’s conclusions about entitlement of  respondent under Section 17-B of the Act is relatable to  non-employment and non-receipt of adequate remuneration of  the workman. The appellant had adduced ample material to  show that the respondent was enrolled as an Advocate in 1983  and was a busy practitioner with decent professional income.  It had even given a list of large number of cases in which  the respondent had appeared. Without any material to support  its conclusions, the High Court observed that "because of  the compulsions of unemployment he has no option but to  continue for a short period as a practising Advocate"  (underlined for emphasis). The conclusions are clearly  contrary to material on record. The respondent was not  entitled to any entitlement under Section 17-B of the Act.  However if any amount has already been paid in the peculiar  facts of the case, the respondent shall not be entitled to  refund the same.            The appeal is allowed without any order as to costs.