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CASE NO.: Appeal (civil)  7501 of 2002

PETITIONER: General Manager, Haryana Roadways                        

RESPONDENT: Rudhan Singh                                             

DATE OF JUDGMENT: 14/07/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

G.P. Mathur, J.

1.      This appeal, by special leave, has been filed against the judgment  and order dted 145.2001 of the High Court of Punjab and Haryana by  which the writ petition preferred by the appellant challenging the award  of Industrial Tribunal-cum-Labour Court, Rohtak directing reinstatement  of the respondent Rudhan Singh with continuity of service and 50% back  wages was dismissed. 2.      The respondent Rudhan Singh was appointed in various capacities  on a class IV post with the appellant Haryana Roadways and he worked  from 16.3.1988 to 28.2.1989 with some breaks.  Thereafter, he was not  given any appointment.  He raised a demand for being reinstated before  the Conciliation Officer, Rohtak on 24.8.1991.  The conciliation efforts  having failed the State Government exercising powers under Section  10(1)(c) of the Industrial Disputes Act, 1947 (for short the ’Act’) made a  reference to the Industrial Tribunal-cum-Labour Court, Rohtak as to  whether the termination of service of the respondent is justified and  valid, and, if not, to what relief he was entitled under law. 3.      In his claim statement the respondent pleaded that he was  appointed as Helper on 16.3.1988 on daily wage basis.  His work and  conduct was always satisfactory but his services were terminated on  28.2.1989 without assigning any reason.  He further pleaded that neither  any notice nor wages in lieu of notice were paid to him and as he had  completed 240 days of service in a calendar year, the termination of his  service was in violation of Section 25-F of the Act and, therefore, the  same was liable to be set aside and he was entitled to be reinstated with  continuity of service and full back wages.  The appellant (management)  filed a written statement on the plea that the respondent Rudhan Singh  was initially appointed on daily wage basis for a fixed period from  16.3.1988 up to 31.3.1988.  Thereafter, he was appointed as Washing  Boy, Helper and Water Carrier as per the needs of the Department.   According to the appellant the appointment of the respondent was for a  fixed period which came to an automatic end and, therefore, it was not a  case of retrenchment in view of Section 2(oo)(bb) of the Act and  consequently Section 25-F of the Act had no application to the facts of  the case.  The respondent filed a replication controverting the please  taken in the written statement and reasserting the contents of the claim  statement.  The parties adduced oral and documentary evidence in  support of their case.  The Industrial Tribunal-cum-Labour Court held  that the respondent had worked for 264 days in one calendar year and,  therefore, the termination of his service without complying with the  requirements of Section 25-F of the Act was illegal as neither any notice  nor salary in lieu thereof nor any retrenchment compensation was paid to  him.  Regarding back wages it was held that the same can be awarded to  the workman keeping in view the actual loss suffered by him by

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remaining out of employment.  Since the respondent was working on a  class IV post and the said type of work was available in Haryana as large  number of labourers come from Eastern UP and Bihar for doing that kind  of work, the Industrial Tribunal-cum-Labour Court concluded that it  cannot be held that the respondent did not earn any amount during the  period he was out of employment.  It was thus held that the respondent  was entitled to 50% back wages.  Accordingly an award was passed on  26.5.2000 directing reinstatement of the respondent on his previous post  with continuity of service and 50% back wages.  The appellant filed a  writ petition challenging the award of the Industrial Tribunal-cum- Labour Court before the Punjab and Haryana High Court, which was  dismissed on 14.5.2001. 4.      Learned counsel for the appellant has submitted that the  respondent had been appointed for a fixed period and his appointment  came to an automatic end after the expiry of the period and, therefore, it  was not a case of retrenchment in view of Section 2(oo)(bb) of the Act.   It is true that in view of the aforesaid provision the termination of service  of a workman as a result of non-renewal of the contract of employment  between the employer and the workman concerned on its expiry or of  such contract being terminated under a stipulation in that behalf  contained therein would not amount to retrenchment in view of Section  2(oo)(bb) of the Act.  However, such a plea that had been taken in the  written statement does not appear to have been pressed before the  Industrial Tribunal-cum-Labour Court nor the award shows that any  evidence was led to substantiate such a plea that the respondent had been  engaged on contract for a fixed period or his contractual employment had  come to an end in accordance with any stipulation contained therein in  that behalf.  This plea has also not been raised before the High Court and,  therefore, it is not open to the appellant to raise a new plea at this stage. 5.      Learned counsel for the appellant has next submitted that  according to the own case of the respondent he was appointed on  16.3.1988 and his services were terminated on 28.2.1989 and thus he had  not worked for one year and consequently Section 25-F of the Act would  not apply to his case.  In support of this submission reliance has been  placed on Sur Enamel and Stamping Works Ltd. vs. The Workmen  [AIR 1963 SC 1914], wherein it was held that under Section 25-F of the  Act only a workman, who has been in continuous service for not less  than one year under an employer, is entitled to its benefit.  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 he had worked for not less than 240 days.  It was further  held that a workman, who has not at all been employed for a period of 12  months, would not satisfy the requirements of Section 25-B of the Act  and would not be entitled to the benefit under Section 25-F of the Act.  It  is important to note that Section 25-B of the Act, which contains the  definition of ’continuous service’ was amended by Act No. 36 of 1964  and the relevant part thereof reads as under: - "25-B.  Definition of continuous service \026 For the  purpose 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 or six  months, he shall be deemed to be in continuous service  under an employer \026 (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\026 (i)     one hundred and ninety days in the case of a

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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\026 (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. - ...................................................................  ................... (omitted as not relevant for the present case)"

This amended provision has been considered in Surendra Kumar  Verma vs. The Central Government Industrial Tribunal-cum- Labour Court, New Delhi [AIR 1981 SC 422], where after noticing the  ratio of Sur Enamel and Stamping Works Ltd. vs. The Workmen  (supra), it was held as under: -         "Act 36 of 1964 has drastically changed the position.   S. 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. ........."

In view of this authoritative pronouncement the requirements of Section  25-F of the Act would be satisfied if a workman has worked for 240 days  in a period of 12 months and it is not necessary that he should have been  in the service of employer for complete one year.  The Industrial  Tribunal-cum-Labour Court has recorded a finding that the respondent  has worked for 264 days and this finding has not been challenged before  the High Court.  In this view of the matter the provisions of Section 25-F  of the Act are clearly applicable and as neither any notice or wages in  lieu of the period of notice nor any retrenchment compensation was paid  to the respondent, his termination of service has to be held to be invalid. 6.      The next question, which requires consideration is whether the  respondent is entitled to any back wages.  The Industrial Tribunal-cum- Labour Court awarded 50% back wages on the ground that in Rohtak  District of State of Haryana work of the nature, which was being done by  the respondent, is available in plenty as a large work force comes from  Eastern UP and Bihar for doing such kind of work.  However, a general  observation has been made that keeping in view the facts and  circumstances of the case it will be proper to award 50% back wages.   The High Court has also not given any reason for upholding this part of  the award.   7.      In our opinion certain factors, which are relevant for forming an  opinion regarding award of back wages, have been completely ignored  and, therefore, the award on this point is vitiated.  The list of dates given  in the Special Leave Petition, which have not been controverted, show  that though according to the own case of the respondent his services had  been terminated on 18.2.1989, yet he served a demand notice praying for  reinstatement in service after two and half years on 24.8.1991.  The State  Government made reference to the Industrial Tribunal-cum-Labour Court  in the year 1997, which means eight years after the termination of  service.  Normally, a reference should not be made after lapse of a long  period.  A labour dispute should be resolved expeditiously and there is no  justification for the State Government to sleep over the matter and make  a reference after a long period of time at its sweet will.  It causes  prejudice both to the workman and also to the employer.  It is not

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possible for an employer to retain all the documents for a long period and  then to produce evidence, whether oral or documentary, after years as the  officers, who may have dealt with the matter, might have left the  establishment on account of superannuation or any other reason.  The  employer is not at fault if the reference is not made expeditiously by the  State Government, but it is saddled with an award directing payment of  back wages without having taken any work from the concerned  workman.  The plight of the workman who is thrown out of employment  is equally bad as it is a question of survival for his family and he should  not be left in a state of uncertainty for a long period. 8.      There is no rule of thumb that in every case where the Industrial  Tribunal gives a finding that the termination of service was in violation  of Section 25-F of the Act, entire back wages should be awarded.  A host  of factors like the manner and method of selection and appointment, i.e.,  whether after proper advertisement of the vacancy or inviting  applications from the employment exchange, nature of appointment,  namely, whether ad hoc, short term, daily wage, temporary or permanent  in character, any special qualification required for the job and the like  should be weighed and balanced in taking a decision regarding award of  back wages.  One of the important factors, which has to be taken into  consideration, is the length of service, which the workman had rendered  with the employer.  If the workman has rendered a considerable period of  service and his services are wrongfully terminated, he may be awarded  full or partial back wages keeping in view the fact that at his age and the  qualification possessed by him he may not be in a position to get another  employment.  However, where the total length of service rendered by a  workman is very small, the award of back wages for the complete period,  i.e., from the date of termination till the date of the award, which our  experience shows is often quite large, would be wholly inappropriate.   Another important factor, which requires to be taken into consideration is  the nature of employment.  A regular service of permanent character  cannot be compared to short or intermittent daily wage employment  though it may be for 240 days in a calendar year. 9.      The written statement filed by the respondent shows that between  16.3.1988 to 31.10.1988 he had been given short term appointments as  Helper, Wash Boy and Water Carrier with breaks of two days and seven  days respectively on two occasions.  After 31.10.1988 he was employed  as Helper on 8.1.1989 after a gap of more than two months.  This  appointment was only up to 31.1.1989 and thereafter he was given fresh  appointment on 7.2.1989, which came to an end on 28.2.1989.  These  facts show that the respondent had not worked continuously from  16.3.1988 to 28.2.1989 in the establishment of the appellant.  A person  appointed on daily wage basis gets wages only for days on which he has  performed work. 10.     In Smt. Saran Kumar Gaur and others vs. State of Uttar  Pradesh and others [JT 1991 (3) SC 478], this Court observed that  when work is not done remuneration is not to be paid and accordingly did  not make any direction for award of past salary.  In State of U.P. and  Anr. vs. Atal Behari Shastri and anr. [JT 1992 (5) 523], a termination  order passed on 15.7.1970 terminating the services of a Licence Inspector  was finally quashed by the High Court in a writ petition on 27.11.1991  and a direction was issued to pay the entire back salary from the date of  termination till the date of his attaining superannuation.  This Court, in  absence of a clear finding that the employee was not gainfully employed  during the relevant period, set aside the order of the High Court directing  payment of entire back salary and substituted it by payment of a  lumpsum amount of Rs.25,000/-.  In Virender Kumar, General  Manager, Northern Railways, New Delhi vs. Avinash Chandra  Chadha and others [(1990) 3 SCC 472], there was a dispute regarding  seniority and promotion to a higher post.  This Court did not make any  direction for payment of higher salary for the past period on the principle  ’no work no pay’ as the respondents had actually not worked on the  higher post to which they were entitled to be promoted.  In Surjit Ghosh  vs. Chairman and Managing Director, United Commercial Bank and  others [(1995) 2 SCC 474], the appellant (Assistant Manager in the

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Bank) was dismissed from service on 28.5.1985, but his appeal was  allowed by this Court on 6.2.1995 as his dismissal order was found to be  suffering from an inherent defect.  His claim for arrears of salary for the  past period came to about Rs.20 lakhs but this Court observed that a huge  amount cannot be paid to anyone for doing no work and accordingly  directed that a compensation amount of Rs.50,000/- be paid to him in lieu  of his claim for arrears of salary. In Anil Kumar Gupta vs. State of  Bihar [(1996) 7 SCC 83], the appellants were employed as daily wage  employees in Water and Land Management Institute of the Irrigation  Department of Government of Bihar and they were working on the posts  of steno-typists, typists, machine operators and peons, etc.  This Court  allowed the appeal of the workmen and directed reinstatement but  specifically held that they would not be entitled to any past salary.  These  authorities show that an order for payment of back wages should not be  passed in a mechanical manner but host of factors are to be taken into  consideration before passing any order for award of back wages. 11.     In the case in hand the respondent had worked for a very short  period with the appellant, which was less than one year.  Even during this  period there were breaks in service and he had been given short term  appointments on daily wage basis in different capacities.  The respondent  is not a technically trained person, but was working on a class IV post.   According to the finding of the Industrial Tribunal-cum-Labour Court  plenty of work of the same nature, which the respondent was doing, was  available in the District of Rohtak.  In such circumstances we are of the  opinion that the respondent is not entitled to payment of any back wages. 12.     The appeal is accordingly partly allowed and the award of the  Industrial Tribunal-cum-Labour Court insofar as it directs reinstatement  with continuity of service is upheld but the award regarding payment of  50% back wages is set aside. 13.     No costs.