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CASE NO.: Appeal (civil)  6654 of 2005

PETITIONER: RAJASTHAN TOURISM DEV. CORPN. LTD. & ANR

RESPONDENT: INTEJAM ALI ZAFRI

DATE OF JUDGMENT: 13/07/2006

BENCH: Dr.AR.LAKSHMANAN & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Dr.AR.LAKSHMANAN,J.  

       Heard Mr.Shrish Kr.Mishra, learned counsel for the appellants and  Mr.Indra Makwana, learned counsel for the respondent-workman.           We have perused the records and the order impugned in this appeal.  The Labour Court has held that the appellant has worked for 240 days.  In our  opinion, the finding recorded by the Labour Court is factually incorrect.  The  appellant has placed material before us and also before the Labour Court that  the workman has worked only for 227 days in about  four years as per the  following description as contained in para 5 of the reply to the statement of  claim :-         "December, 1987                 4 days          January, 1988                  27 days          February, 1988               25 days          March, 1988                    27 days          March, 1990                    23 days          April, 1990                  23 days          May, 1990                            20 days          July, 1990                           18 days          August, 1990                   18 days          December, 1991               14 days          January, 1992                  24 days          February, 1992               04 days                                 ___________________                                                  Total Days 227 days"                                  __________________

       The respondent has not worked for 240 days in one calendar year  which is the condition precedent for attracting provisions of Section 25F of  the Industrial Disputes Act, 1947.  This apart, the workman was a causal  house assistant who never worked for 240 days continuously in one calendar  year.  As per the provisions of Section 25(B) of the Industrial Disputes Act,  there should be working of 240 days in one calendar year.  Hence, the  provisions of Section 25F of the Industrial Disputes Act are not attracted in  the instant case for the reason that the respondent worked only for 227 days  in about 4 years period from the date of his initial appointment i.e. 28.12.1987  to the date of termination i.e. 07.02.1992.  In our opinion, the learned Single  Judge as also the learned Judges of the Division Bench of the High Court  have committed a mistake of law in ordering reinstatement with back wages  etc.  This apart, the order passed by the Division Bench is also non-speaking.           As already noticed, it is the settled proposition of law that when the  initial appointment itself is void then the provisions of Section 25F of the  Industrial Disputes Act are not applicable while terminating the services of  the workman.  The respondent-workman has also not placed before the  Labour Court the relevant documents and not even summoned the records  before the Labour Court.  It is seen from the records that neither the Labour  Court called for the records concerned nor the respondent-workman moved

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an application before the Labour Court for summoning the records. The  respondent-workman led no cogent and convincing evidence before the  Labour Court.  Accordingly, the award passed by the Labour Court deserves  to be quashed and set aside.         For the aforesaid reasons, we set aside the order of reinstatement and  back wages passed by the courts below.  The appeal stands allowed  accordingly.  No costs.         We make it clear that if any payment is made to the respondent during  the pendency of appeal in this Court, the same shall not be recovered.         In view of the order now passed, the proceedings before the Labour  Court under Section 33C(2) has become infructuous.   27862