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Employers in Relation to Digwadih Colliery Vs. their Workmen - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC75; 1966(0)BLJR185; [1965(11)FLR99]; (1965)IILLJ118SC; [1965]3SCR448
ActsIndustrial Disputes Act, 1947 - Sections 2, 13 and 25B; Industrial Disputes (Amendment) Act, 1953 - Sections 25C and 25F; Industrial Employment (Standing Orders) Act, 1946; Industrial Disputes (Amendment) Act, 1964 - Sections 2
AppellantEmployers in Relation to Digwadih Colliery
Respondenttheir Workmen
Excerpt:
.....tribunal - appellant approached supreme court by special leave against order of tribunal - argued that conditions under section 25 f not complied as it requires 'continuous service' and service for not less than one year - supreme court discussed meaning of 'continuous service' - section 25 b says that for purpose of section 25 f workman who has worked 240 days during period of twelve calendar months is deemed to have completed one year of 'continuous service' - conditions under section 25 f fulfilled by workman - neither amendment in relevant provisions nor absenteeism of workman of any use in case workmen worked 240 days in a period of twelve calendar months - appeal dismissed as termination not justified on grounds of non compliance of provisions of section 25 f. - - a..........the employers submitted that s. 25f could apply only if jaldharsingh had put in 240 days' continuous service in any of the years 1959 or 1960.4. the service of jaldhar singh was admittedly terminated as there was nowork for him and not on account of disciplinary action or voluntary retirement,superannuation or ill-health. this was thus a case of retrenchment as definedin 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) act1953 (43 of 1953) provides : '25f. conditions precedentto retrenchment of workmen. no workman employed in anyindustry who has been in continuous service for not less than one year under anemployer shall be retrenched by that employer until - (a) the workman.....
Judgment:

Hidayatullah, J.

1. This is an appeal by special leave against the Award dated August 3,1962, of the Central Government Industrial Tribunal, Dhanbad, under theIndustrial Disputes Act 1947. The appellants are the Employers in relation toDigwadih Colliery and the respondents their workmen. The workmen did not appearin this Court. The dispute was whether the management of the colliery wasjustified in terminating the services of Jaldhar Singh with back wages.

2. Jaldhar Singh was a 'badli' workman which means (as defined by theStanding Orders of the colliery) a person appointed in the post of a permanentemployee or probationer who is temporarily absent. He worked as badli in thecalendar years 1959 and 1960 in different capacities. His employment was, ofcourse, not continuous and there were six breaks of one day to a week in 1959and eight breaks of one day to a week in 1960. However, he worked for more than240 days in each calendar year though with these interruptions. In January 1961the colliery terminated Jaldhar Singh's services without notice to him orpayment of wages in lieu of notice or compensation. A dispute arising,conciliation was attempted but failed and the reference followed.

3. Before the Tribunal the workmen claimed that Jaldhar Singh was apermanent workman while the Employers contended that he was temporary. TheEmployers stated that as some of the permanent staff had become surplus, therewas no need of badli workmen and the termination of Jaldhar Singh's service wasjustified. The workmen attempted to prove that Jaldhar Singh was permanent from1960 and produced some documents from which they asked that this inference bedrawn but the Tribunal did not agree, The workmen relied in the alternativeupon s. 25F of the Act because Jaldhar Singh had put in service of 240 days ineach of the years and contended that as the Employers had failed to comply withthe provisions of s. 25F the termination of service was illegal andunjustified. The Employers submitted that s. 25F could apply only if JaldharSingh had put in 240 days' continuous service in any of the years 1959 or 1960.

4. The service of Jaldhar Singh was admittedly terminated as there was nowork for him and not on account of disciplinary action or voluntary retirement,superannuation or ill-health. This was thus a case of retrenchment as definedin 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) Act1953 (43 of 1953) provides :

'25F. Conditions precedentto retrenchment of workmen.

No workman employed in anyindustry who has been in continuous service for not less than one year under anemployer shall be retrenched by that employer until -

(a) the workman has been givenone month's notice in writing indicating the reasons for retrenchment and theperiod of notice has expired, or the workman has been paid in lieu of suchnotice, wages for the period of notice :

Provided that no such noticeshall be necessary if the retrenchment under an agreement which specifies adate for the termination of service;

(b) the workmen has been paid,at the time of retrenchment compensation which shall be equivalent to fifteendays' average pay for every completed year of service or any part thereof inexcess of six months; and

(c) notice in the prescribedmanner is served on the appropriate Government.'

5. The section, if it applied, had plainly not been complied with in respectof any of the conditions precedent. Jaldhar Singh, as seen already, had notbeen given any notice or wages in lieu of notice or paid compensation and nonotice had been served on the appropriate Government. The termination of servicewould, in these circumstance be illegal. But the Employers pointed out that s.25F required two conditions : (a) continuous service and (b) service for notless than one year, and contended that these conditions were not fulfilled asthe service was not continuous but broken. They relied on the definition of'continuous service' in s. 2(eee) which introduced by the sameamending Act :

'2(eee) continuous service means uninterruptedservice, and includes service which may be interrupted merely on account ofsickness 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 partof the workman;'

6. The workmen, on the other hand, relied upon the provisions of s. 25B whichread :

'25B. Definition of one yearof continuous service.

For the purposes of sections 25C and 25F, a workman who, during a period of 12 calendar months, has actuallyworked in an industry for not less than two hundred and forty days shall bedeemed to have completed one year of continuous service in the industry.

Explanation. - In computing thenumber of days on which workman has actually worked in any industry the days onwhich -

(a) he has been laid off underan agreement or as permitted by standing orders made under the IndustrialEmployment (Standing Orders) Act, 1946, or under this Act or under any otherlaw applicable to the industrial establishment, the largest number of daysduring which he has been so laid-off being taken into account for the purposesof this clause,

(b) he has been on leave withfull wages, earned in the previous year, and

(c) in the case of a female,she has been on maternity leave; so however that the total period of suchmaternity leave shall not exceed twelve weeks, shall be included.'

7. The definitions in s. 2 of the Act do not apply if there is anythingrepugnant in the subject or context and the question is whether the definitionof 'continuous service' can at all apply in considering s. 25F whenwhat is meant by the expression 'one year of continuous service' ins. 25F is, by s. 25B specially stated. If s. 25B had not been enacted, thecontention 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 12months without interruptions other than those stated in s. 2(eee) itself. Buts. 25B says that for the purpose of s. 25F a workman who, in a period of twelvecalendar months has actually worked for not less than 240 days, shall be deemedto have completed one year of continuous service. Service for 240 days in aperiod of twelve calendar months is equal not only to service for a year but isto be deemed continuous service even if interrupted. Therefore, though s. 25Fspeaks of continuous service for not less than one year under the employer, bothconditions are fulfilled if the workman has actually worked for 240 days duringa period of twelve calendar months. It is not necessary to read the definitionof continuous service into s. 25B because the fiction converts service of 240days in a period of twelve calendar months into continuous service for onecomplete year.

8. Mr. B. Sen drew our attention to the Industrial Disputes (Amendment) Act1964 which was passed last December. By s. 2(iii) of the amending Act of 1964clause (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 ofthis Chapter, -

(1) a workman shall be said tobe in continuous service for a period if he is, for that period, inuninterrupted service, including service which may be interrupted on account ofsickness or authorized leave or on 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 partof the workman;

(2) where a workman is not incontinuous service within the meaning of clause(1) for a period of one year . .. . , 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 datewith reference to which calculation is to be made, has actually worked underthe employer for not less than -

(i) one hundred and ninety daysin the case of a workman employed below ground in a mine; and

(ii) two hundred and fortydays, in any other case;

. . . . . . . . . . . . . . .

. . . . . . . . . . . . .'

9. The Explanation to s. 25B is the same, mutatis mutandis as before. Mr.Sen contend that the change in the law brought out his contention. We do notagree. The amended s. 25B only consolidates the previous sections 25B and 2(eee)in one place, adding some other matters which are not relevant to the presentpurpose, but the purport of the new provisions is not different. In fact theamendment of s. 25F of the principal Act by substituting in clause(b) the words'for every completed year of continuous service' for the words'for every completed year of service' now removes a discordancebetween the unamended section 25B and the unamended clause(b) of s. 25B. Neitherbefore these several changes nor after is uninterrupted service necessary ifthe total service is 240 days in a period of twelve calendar months. The onlychange in the new Act is that this service must be during a period of twelvecalendar months preceding the date with reference to which calculation is to bemade. The last amendment now removes a vagueness which existed in the unamendeds. 25B.

10. We accordingly hold that the decision under appeal is correct. Theappeal fails and is dismissed.

11. Appeal dismissed.


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