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PETITIONER: EMPLOYERS IN RELATION TO DIGWADIH COLLIERY

       Vs.

RESPONDENT: THEIR WORKMEN

DATE OF JUDGMENT: 22/03/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. RAMASWAMI, V.

CITATION:  1966 AIR   75            1965 SCR  (3) 448  CITATOR INFO :  F          1974 SC1166  (7)  RF         1980 SC1219  (10)

ACT: Industrial  Disputes  Act  (14 of 1947), ss.  25B  and  25F- Continuous service, meaning of.

HEADNOTE: A badli workman worked as the appellant’s employee for  more than  240 days, with interruptions in each of  the  calendar years  1959  and  1960.   He was  retrenched  in  1961.   An industrial  dispute  having arisen, it was referred  to  the Tribunal,  which held, that the appellant was not  justified in terminating the services of the workman as the provisions of s. 25F of the Industrial Disputes Act, 1947 were not com- plied with. In  its appeal to this Court, the appellant  contended  that the  section could apply only if the workman had put in  240 days’ continuous service in any of the years 1959 and 1960. HELD:     Section 25B says that, for the purpose of s. 25F a workman who, in a period of 12 calendar months has  actually worked  for not less than 240 days shall be deemed  to  have completed  one year of continuous service.  Service for  240 days in a period of 12 calendar months is equal not only  to service  for a year but is to be deemed  continuous  service even  if  interrupted.  Therefore, though s. 25F  speaks  of continuous  service  for not less than one  year  under  the employer,  both the conditions are fulfilled if the  workman has  actually  worked  for 240 days during a  period  of  12 calendar months.  It is not necessary to read the definition of continuous service in s. 2(fee) into s. 25B, because, the fiction  converts  service of 240 days in a  period  of  the twelve  calendar  months  into continuous  service  for  one complete year. [451C-E] The amendments introduced by the Industrial Disputes (Amend- ment)  Act,  1964  into ss. 25B and  25F  only  removed  the discordance  between the unmended sections 25B and  25F  (b) and vagueness which existed previously.  But neither  before the   amendments   nor  after,  is   uninterrupted   service necessary,  if the total service is 240 days in a period  of

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12 calendar months. [452D-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 43 of 1964, Appeal by special leave from the award, dated August 3, 1962 of  the Central Government Industrial Tribunal,  Dhanbad  in Reference No. 56 of 1961. B. Sen and I.N. Shroff, for the appellants. The respondent did not appear. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal by special leave  against the  Award dated August 3, 1962, of the  Central  Government Industrial  Tribunal Dhanbad, under the Industrial  Disputes Act 1947 448 449 The  appellants  are the Employers in relation  to  Digwadih Colliery and the respondents their workmen.  The workmen did not  appear  in  this Court.  The dispute  was  whether  the management of the colliery was justified in terminating  the services of Jaldhar Singh with back wages. Jaldhar Singh was a ’badli’ workman which means (as  defined by  the Standing Orders of the colliery) a person  appointed in  the post of a permanent employee or probationer  who  is temporarily  absent.   He worked as badli  in  the  calendar years 1959 and 1960 in different capacities.  His employment was, of course, not continuous and -there were six breaks of one  day to a week in 1959 and eight breaks of one day to  a week in 1960.  However, he worked for more than 240 days  in each  calendar  year though with  these  interruptions.   In January 1961 the colliery terminated Jaldhar Singh’s service without notice to him or payment of wages in lieu of  notice or  compensation.   A  dispute  arising,  conciliation   was attempted but failed and the reference followed. Before  the Tribunal the workmen claimed that Jaldhar  Singh was  a permanent workman while the Employers contended  that he was temporary.  The Employers stated that as some of  the permanent  staff  had become surplus, there was no  need  of badli workmen and the termination of Jaldhar Singh’s service was justified.  The workmen attempted to prove that  Jaldhar Singh  was permanent from 1960 and produced  some  documents from  which they asked that this inference be drawn but  the Tribunal   did  not  agree.   The  workmen  relied  in   the alternative upon s. 25F of the Act because Jaldhar Singh had put  in  service  of  240 days in  each  of  the  years  and contended  that as the Employers had failed to  comply  with the  provisions  of s. 25F the termination  of  service  was illegal  and unjustified.  The Employers submitted  that  s. 25F  could apply only if Jaldhar Singh had put in 240  days’ continuous service in any of the years 1959 or 1960. The  service of Jaldhar Singh was admittedly  terminated  as there was no work for him and not on account of disciplinary action  or  voluntary  retirement,  superannuation  or  ill- health.  This was thus a case of retrenchment as defined  in s.  2(00)  of the Act.  Section 25F, which was  inserted  as part of Chapter VA, with effect from October 24, 1953 by the Industrial  Disputes  (Amendment)  Act  1953  (43  of  1953) provides:               "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-

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             (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               450               been  paid in lieu of such notice,  wages  for               the period of the notice:               Provided   that  no  such  notice   shall   be               necessary  if  the retrenchment  is  under  an               agreement  which  specifies  a  date  for  the               termination of service;               (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 service or  any  part               thereof in excess of six months;               and,               (c)   notice  in  the  prescribed  manner   is               served on the appropriate Government," The  section, if it applied, had plainly not  been  complied with  I  in  respect of any  of  the  conditions  precedents Jaldhar  Singh,  as  seen already, had not  been  given  any notice  or wages in lieu of notice or paid compensation  and no  notice  had been served on the  appropriate  Government. The termination of service would, in these circumstances, be illegal.   But  the  Employers  pointed,  out  that  s.  25F required  two  conditions: (a) continuous  service  and  (b) service for not less than one year, and contended that these conditions  were  not  fulfilled  as  the  service  was  not continuous  but  broken.  They relied on the  definition  of "continuous  service" in s. 2(eee) which was  introduced  by the same amending Act:               "2(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 a lock-out  or               a  cessation of work which is not due  to  any               fault on the part of the workman;"               The  workmen, on the other hand,  relied  upon               the provisions of s. 25B which read:               "25B.   Definition of one year  of  continuous               service.               For  the purposes of sections 25C and  25F,  a               workman  who, during a period of  12  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.-In  computing the number of  days               on which a workman has actually worked in  any               industry, the days on which-               (a)   he has been laid off under an  agreement               or as permitted by standing orders made  under               the  Industrial Employment  (Standing  Orders)               Act,  1946,  or under this Act  or  under  any               other   law  applicable  to   the   industrial               establishment,  the  largest  number  of  days               during               451               which he has been so laid-off being taken into               account for the purposes of this clause,               (b)   he  has been on leave with  full  wages,               earned in the, previous year, and               (c)   in the case of a female, she has been on

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             maternity               leave;  so  however that the total  period  of               such  maternity leave shall not exceed  twelve               weeks,               shall be included." The definitions in s. 2 of the Act do not apply if there  is anything  repugnant  in  the  subject  or  context  and  the question  is whether the definition of "continuous  service" can at all apply in considering s. 25F when what is meant by the  expression "one year of continuous service" in  s.  25F is,  by  s. 25B specially stated.  If s. 25B  had  not  been enacted  the  contention of the Employers  would  have  been unanswerable for the words of s. 25F would then have plainly meant  that the service should be for a period of 12  months without  interruptions other than those stated in s.  2(eee) itself.   But s. 25B says that for the purpose of s.  25F  a workman  who,  in  a period of twelve  calendar  months  has actually  worked for not less than 240 days shall be  deemed to  have completed one year of continuous service.   Service for 240 days in a period of twelve calendar months is  equal not  only  to  service  for  a year  but  is  to  be  deemed continuous  service even if interrupted.  Therefore,  though s.  25F speaks of continuous service for not less  than  one year  under the employer, both conditions are  fulfilled  if the workman has actually worked for 240 days during a period of twelve calendar months. It is  not necessary to read  the definition of continuous service into s.     25B because the fiction  converts service of 240 days in a period of  twelve calendar  months  into continuous service for  one  complete year. Mr.  B.  Sen drew our attention to the  Industrial  Disputes (Amendment) Act 1964 which was passed last December.  By  s. 2(iii)  of  the  amending Act of 1964 clause  (eee)  of  the second  section of the principal Act was omitted and  by  s. 13,  for  s.  25B in the principal  Act  the  following  was substituted:               "25B.  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 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;               (2)   where  a  workman is not  in  continuous               service within the meaning of clause (1) for a               period of one year               452                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; The  Explanation to s. 25B is the same, mutatis mutandis  as before.   Mr.  Sen  contended that the  change  in  the  law brought  out his contention.  We do not agree.  The  amended s.  25B  only  consolidates the previous  sections  25B  and

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2(eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the  new provisions  is not different.  In fact the amendment  of  s. 25F  of  the principal Act by substituting in  cl.  (b)  the words  "for every completed year of continuous service"  for the words "for every completed year of service" now  removes a  discordance  between the unamended section  25B  and  the unamended  cl. (b) of s. 25B.  Neither before these  several changes nor after is uninterrupted service necessary if  the total  service  is 240 days in a period of  twelve  calendar months.  The only change in the new Act is that this service must be during a period of twelve calendar months  preceding the date with reference to which calculation is to be  made. The last amendment now removes a vagueness which existed  in the unamended s. 25B. We  accordingly  hold  that the  decision  under  appeal  is correct. The appeal fails and is dismissed. Appeal dismissed. 453