SUPREME COURT OF INDIA
Administrator Kamala Nehru Memorial Hospital
Vs
Vinod Kumar
Civil Appeal No.7908 of 2004
(Arijit Pasayat and Tarun Chatterjee)
08/12/2005
JUDGMENT
ARIJIT PASAYAT, J.
1. 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.
2. 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?" *
3. 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 set 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 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.
4. In support of the appeal, learned counsel for the appellant submitted that
though some changes were introduced in the Act, so for 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.
5. 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.
6. 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- *
(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." *
7. 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 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.
8. 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 liable to refund the same.
9. The appeal is allowed without any order as to costs.