Supreme Court of India
MOHD. ALIversusSTATE OF H.P. AND OTHERS
- Citation
- 2018 INSC 346
- Decided
- 16 April 2018
- Disposal
- Dismissed
- Bench
- R K AGRAWAL
Holding
The appellant did not meet the 240‑day condition in the twelve months preceding his dismissal and is therefore not entitled to the protection of Section 25F; the High Court’s setting aside of the award stands.
Summary
Mohd. Ali was employed as a casual labourer on a muster‑roll at an agricultural seed farm from 1980 to 1991, completing the statutory 240 days of work only in the years 1980‑1982 and 1986‑1989. He ceased work in 1991 without informing his employer. In 2005 he sought relief under Section 10 of the Industrial Disputes Act, leading to a reference before the Industrial Tribunal‑cum‑Labour Court, which awarded reinstatement with seniority but denied back wages. The State challenged the award; the Himachal Pradesh High Court set it aside. On appeal, the Supreme Court examined whether Ali satisfied the condition precedent under Section 25F, i.e., having worked at least 240 days in the twelve months immediately preceding his dismissal. The Court held that he worked only 195 days in 1990 and 19.5 days in the year before dismissal, falling short of the 240‑day requirement, and therefore could not invoke Section 25F. Consequently, the High Court’s decision was affirmed and the appeal dismissed.
Issues considered
- Whether the appellant satisfied the 240‑day requirement of Section 25B in the twelve months preceding his dismissal to attract the protection of Section 25F.
- Whether the protection under Section 25F applies when the 240‑day threshold is met in a year other than the immediate preceding twelve‑month period.
- Interpretation of the deeming provision in Section 25B regarding continuous service for the purpose of retrenchment.
Legislation cited
- Industrial Disputes Act, 1947s. 10, s. 25B, s. 25F
Subjects
Industrial Disputes ActSection 25FSection 25Bcontinuous servicere‑trenchmentcasual labourdeeming fictioneligibilityreinstatementback wages
Judgment
[2018] 6 S.C.R. 727 727
MOHD. ALI A
v.
STATE OF H.P. AND OTHERS
(Civil Appeal No. 3803 of 2018)
APRIL 16, 2018 B
[R. K. AGRAWAL AND S. ABDUL NAZEER, JJ.]
Industrial Disputes Act, 1947 – s. 25F – Condition precedent
to retrenchment – Appellant was engaged as casual labour in the
agriculture farm on muster roll basis – He worked there from 1980
C
to 1991 and completed 240 days in a calendar year, during the
years 1980, 1981, 1982 and 1986 to 1989 – Respondent-State case
was that thereafter in 1991 he abandoned the work without
informing and never returned to work – In 2005, appellant made
representation before the State u/s. 10 – Pursuant thereto, the State
made reference to the Industrial Tribunal-cum-Labour Court, which D
gave the award and directed the respondent-State to reinstate the
appellant in service with seniority and continuity while denying back
wages – Writ petition filed by the respondent-State – Award set aside
by the High Court – Held: It is an admitted position that though the
appellant worked from 1980 to 1991 and completed 240 days in a
E
calendar year, during the years 1980, 1981, 1982 and 1986 to
1989 but he worked only for 195 days in the year 1990 and 19.5
days in the immediate preceding year of his dismissal which is below
the required 240 days of working in the period of 12 calendar
months preceding the date of dismissal, therefore, he is not entitled
to take the benefits of the provisions of s.25F of the Act – High F
Court was right in setting aside the award passed by Tribunal.
Industrial Disputes Act, 1947 – Enactment of the Act – Object
of.
Dismissing the appeal, the Court
HELD: 1. The Industrial Disputes Act is a welfare G
legislation. The intention behind its enactment was to protect
the employees from arbitrary retrenchments. For this reason only,
in a case of retrenchment of an employee who has worked for a
year or more, Section 25F provides a safeguard in the form of
giving one month’s prior notice indicating the reasons for H
727
728 SUPREME COURT REPORTS [2018] 6 S.C.R.
A retrenchment to the employee and also provides for wages for
the period of notice. Section 25B of the Act provides that when a
person can be said to have worked for one year and the very
reading of the said provisions makes it clear that if a person has
worked for a period of 240 days in the last preceding year, he is
deemed to have worked for a year. The theory of 240 days for
B
continuous service is that a workman is deemed to be in
continuous service for a period of one year, if he, during the period
of twelve calendar months preceding the date of retrenchment
has actually worked under the employer for not less than 240
days. [Para 9] [733-C-E]
C 2. Though the appellant worked as such till 1991 under
different work/schemes i.e. Rabi and Kharif and completed 240
days in a calendar year only during the years 1980, 1981, 1982
and 1986 to 1989 but he worked only for 195 days in the year
1990 and 19.5 days in the immediate preceding year of his
D dismissal which is below the required 240 days of working in the
period of 12 calendar months preceding the date of dismissal,
therefore, he is not entitled to take the benefits of the provisions
of Section 25F of the Act. [Para 12] [737-G]
Surendra Kumar Verma and Others v. Central
E Government Industrial Tribunal-Cum-Labour Court,
New Delhi and Another (1980) 4 SCC 443 : [1981] 1
SCR 789 ; Mohan Lal v. Management of M/s Bharat
Electronics Limited (1981) 3 SCC 225 : [1981] 3 SCR
518 – relied on.
F Case Law Reference
[1981] 1 SCR 789 relied on Para 10
[1981] 3 SCR 518 relied on Para 11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3803
of 2018.
G
From the Judgment and Order dated 18.11.2013 of the High Court
of Himachal Pradesh at Shimla in LPA No. 209 of 2011.
M. C. Dhingra, Ashwin Kr. Gupta, Gaurav Dhingra, Piyush Kant
Roy, Advs. for the Appellant.
H
MOHD. ALI v. STATE OF H.P. AND OTHERS 729
D. K. Thakur, AAG, Varinder Kumar Sharma, Adv. for the A
Respondents.
The Judgment of the Court was delivered by
R. K. AGRAWAL J. 1. Leave granted.
2. The present appeal has been filed against the impugned judgment B
and order dated 18.11.2014 passed by the Division Bench of the High
Court of Himachal Pradesh at Shimla in LPA No. 209 of 2011 whereby
the High Court dismissed the appeal filed by the appellant herein against
the judgment and order dated 07.07.2010 passed by learned single Judge
in CWP No. 3761 of 2009.
C
3. Brief Facts:-
(a) Mohd. Ali-the appellant herein was engaged as Casual
Labourer in the Agriculture Seed Multiplication Farm Bhagni, Dist.
Sirmor, Himachal Pradesh on Muster roll basis during the year 1980.
He worked as such till the year 1991 under different work schemes i.e., D
Rabi and Kharif and completed 240 days in a calendar year during the
years 1980, 1981, 1982 and 1986 to 1989.
(b) It is the case of the respondents that during the period of
engagement, the appellant had worked as follows:-
S .N o . Y e ar N u m b e r of d ay s w o r k e d E
1. 1 98 0 2 99
2. 1 98 1 29 7.5
3. 1 98 2 28 9.5
4. 1 98 3 1 26
F
5. 1 98 4 4 .5
6. 1 98 5 2 27
7. 1 98 6 2 92
8. 1 98 7 28 4.5
9. 1 98 8 2 82 G
1 0. 1 98 9 2 58
1 1. 1 99 0 1 95
1 2. 1 99 1 1 9 .5
H
730 SUPREME COURT REPORTS [2018] 6 S.C.R.
A It is further the case of the respondents that thereafter he
abandoned the work without informing the Incharge Seed Multiplication
Farm Bhagani and never returned to work.
(c) In the year 2005, the appellant herein made a representation
to the State Government for making Reference under Section 10 of the
B Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). In
pursuance of the Representation made by the appellant herein, the State
Government made a Reference being No. 9 of 2005 to the Industrial
Tribunal-cum-Labour Court, Shimla.
(d) Learned Presiding Judge, gave the Award dated 23.04.2009
C
in favour of the appellant herein and directed the respondent-State to
reinstate the appellant in service with seniority and continuity while denying
the back wages.
(e) Being aggrieved, respondent-State filed a writ petition being
D CWP No. 3761 of 2009 before the High Court at Shimla. Learned single
Judge of the High Court, by judgment and order dated 07.07.2010,
allowed the said writ petition and set aside the Award dated 23.04.2009.
(f) Being aggrieved by the order passed by learned single Judge,
the appellant preferred a Letters Patent Appeal before the High Court.
E The Division Bench of the High Court, vide judgment and order dated
18.11.2014 dismissed the Letters Patent Appeal while upholding the
decision of learned single Judge.
(g) Aggrieved by the judgment and order passed by the Division
Bench of the High Court, the appellant has preferred this appeal by way
F of special leave before this Court.
4. Heard Mr. M.C. Dhingra, learned counsel for the appellant
and Mr. D.K. Thakur, learned Additional Advocate General for the
respondent-State and perused the records.
G Point(s) for consideration:-
5. The short point that arises for consideration in the present case
is whether in the present facts and circumstances of the instant case,
the impugned order of the High Court calls for any interference?
H
MOHD. ALI v. STATE OF H.P. AND OTHERS 731
[R. K. AGRAWAL, J.]
Rival contentions:- A
6. At the outset, learned counsel appearing on behalf of the
appellant argued that the dismissal of the appellant was in violation of
the provisions of Sections 25F read with Section 25B of the Act. Learned
counsel further argued that the High Court misinterpreted Section 25B
along with Section 25F of the Act. It was further submitted that it is not B
necessary that a workman has to complete the 240 days’ period during
the period of 12 months immediately preceding his disengagement. Rather,
he argued that inasmuch as once the appellant completed 240 days of
service in any calendar year of his employment then he becomes entitled
for the benefits of provisions of Section 25F of the Act.
C
7. Learned counsel appearing for the respondent-State submitted
that the service of the appellant herein was not retrenched but the appellant
herein abandoned the work himself. Further, it was submitted that the
appellant herein approached the State Government after a delay of more
than 12 (twelve) years which was not properly explained by the appellant
herein. Hence, the appellant herein was negligent qua his act and no D
interference is sought for by this Court in the matter.
Discussion:-
8. At this juncture, in order to appreciate the matter in controversy
it is necessary to reproduce relevant portion of Section 25F and Section E
25B of the Act which are as follows:
“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— F
(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 been paid in lieu of such notice,
wages for the period of the notice;
***** G
(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 continuous service or any part
thereof in excess of six months; and
H
732 SUPREME COURT REPORTS [2018] 6 S.C.R.
A (c) notice in the prescribed manner is served on the appropriate
Government or such authority as may be specified by the
appropriate Government by notification in the Official Gazette.
25B. Definition of continuous service.- For the purposes of
this Chapter,-
B (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
C 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
D 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
E (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—
F (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 purposes of clause (2), the number of days
on which a workman has actually worked under an employer shall
G 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;
H
MOHD. ALI v. STATE OF H.P. AND OTHERS 733
[R. K. AGRAWAL, J.]
(ii) he has been on leave with full wages, earned in the previous A
years;
(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 B
exceed twelve weeks.”
9. It is a well known fact that the Industrial Disputes Act is a
welfare legislation. The intention behind the enactment of this Act was
to protect the employees from arbitrary retrenchments. For this reason
only, in a case of retrenchment of an employee who has worked for a C
year or more, Section 25F provides a safeguard in the form of giving one
month’s prior notice indicating the reasons for retrenchment to the
employee and also provides for wages for the period of notice. Section
25B of the Act provides that when a person can be said to have worked
for one year and the very reading of the said provisions makes it clear D
that if a person has worked for a period of 240 days in the last preceding
year, he is deemed to have worked for a year. The theory of 240 days
for continuous service is that a workman is deemed to be in continuous
service for a period of one year, if he, during the period of twelve calendar
months preceding the date of retrenchment has actually worked under
the employer for not less than 240 days. E
10. In Surendra Kumar Verma and Others vs. Central
Government Industrial Tribunal-Cum-Labour Court, New Delhi and
Another (1980) 4 SCC 443, a three-Judge Bench of this Court has very
categorically dealt with the theory of 240 days as contemplated under
Section 25B of the Act. The relevant paragraphs of the judgment are F
reproduced hereinbelow:-
“8….The provision appears to be plain enough. Section 25-F
requires that a workman should be in continuous service for not
less than one year under an employer before that provision applies.
While so, present Section 25-B(2) steps in and says that even if a G
workman has not been in continuous service under an employer
for a period of one year, he shall be deemed to have been in such
continuous service for a period of one year, if he has actually
worked under the employer for 240 days in the preceding period
of twelve months. There is no stipulation that he should have been
H
734 SUPREME COURT REPORTS [2018] 6 S.C.R.
A in employment or service under the employer for a whole period
of twelve months. In fact, the thrust of the provision is that he
need not be. That appears to be the plain meaning without gloss
from any source.
9. Now, Section 25-B was not always so worded. Prior to Act 36
B of 1964, it read as follows:
“For the purposes of Sections 25-C and 25-F, 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
C in the industry.
Explanation.—….
The difference between old Section 25-B and present Section
25-B is patent. The clause “where a workman is not in
continuous service … for a period of one year” with which
D present Section 25-B(2) so significantly begins, was equally
significantly absent from old Section 25-B. Of the same degree
of significance was the circumstance that prior to Act 36 of
1964 the expression “continuous service” was separately defined
by Section 2(eee) as follows:
E “(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 lock-out or a cessation of work
which is not due to any fault on the part of the workman;”
F Section 2(eee) was omitted by the same Act 36 of 1964 which
recast Section 25-B. Section 25-B as it read prior to Act 36 of
1964, in the light of the then existing Section 2 (eee), certainly lent
itself to the construction that a workman had to be in the service
of the employer for a period of one year and should have worked
for not less than 240 days before he could claim to have completed
G
one year’s completed service so as to attract the provisions of
Section 25-F. That precisely was what was decided by this Court
in Sur Enamel and Stamping Works Ltd. v. Workmen. The court
said:
H
MOHD. ALI v. STATE OF H.P. AND OTHERS 735
[R. K. AGRAWAL, J.]
“On the plain terms of the Section 25-F only a workman who A
has been in continuous service for not less than one year under
an employer is entitled to its benefit. ‘Continuous service’ is
defined in Section 2(eee) as meaning uninterrupted service,
and includes service which may be interrupted merely on
account of sickness or authorised leave or an accident or a
B
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. What
is meant by ‘one year of continuous service’ has been defined
in Section 25-B. Under this section a workman who during a
period of twelve calendar months has actually worked in an
industry for not less than 240 days shall be deemed to have C
completed service in the industry. . . . The position (therefore)
is that during a period of employment for less than 11 calendar
months these two persons worked for more than 240 days. In
our opinion that would not satisfy the requirement of Section
25-B. Before a workman can be considered to have completed
D
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
had worked for not less than 240 days. Where, as in the present
case, the workmen have not at all been employed for a period
of 12 calendar months it becomes unnecessary to examine E
whether the actual days of work numbered 240 days or more.”
Act 36 of 1964 has drastically changed the position. Section 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 F
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; G
it is not necessary that he should have been in the service of the
employer for one whole year. So we hold that Usha Kumari and
Madhu Bala are in the same position as the other appellants.”
H
736 SUPREME COURT REPORTS [2018] 6 S.C.R.
A 11. Further, this Court, in Mohan Lal vs. Management of M/s
Bharat Electronics Limited (1981) 3 SCC 225, in paragraphs 10 and
12 held as under:-
“10. It was, however, urged that Section 25-F is not attracted in
this case for an entirely different reason. Mr Markendeya
B contended that before Section 25-F is invoked, the condition of
eligibility for a workman to complain of invalid retrenchment must
be satisfied. According to him unless the workman has put in
continuous service for not less than one year his case would not
be governed by Section 25-F……
C 12. Sub-section (2) incorporates another deeming fiction for an
entirely different situation. It comprehends a situation where a
workman is not in continuous service within the meaning of sub-
section (1) for a period of one year or six months, he shall be
deemed to be in continuous service under an employer for a period
of one year or six months, as the case may be, if the workman
D during the period of 12 calendar months just preceding the date
with reference to which calculation is to be made, has actually
worked under that employer for not less than 240 days. Sub-section
(2) specifically comprehends a situation where a workman is not
in continuous service as per the deeming fiction indicated in sub-
E section (1) for a period of one year or six months. In such a case
he is deemed to be in continuous service for a period of one year
if he satisfies the conditions in sub-clause (a) of clause (2). The
conditions are that commencing (sic) the date with reference to
which calculation is to be made, in case of retrenchment the date
of retrenchment, if in a period of 12 calendar months just preceding
F such date the workman has rendered service for a period of 240
days, he shall be deemed to be in continuous service for a period
of one year for the purposes of Chapter V-A. It is not necessary
for the purposes of clause (2)(a) that the workman should be in
service for a period of one year. If he is in service for a period of
G one year and that if that service is continuous service within the
meaning of clause (1) his case would be governed by clause (1)
and his case need not be covered by clause (2). Clause (2)
envisages a situation not governed by clause (1). And clause (2)(a)
provides for a fiction to treat a workman in continuous service for
a period of one year despite the fact that he has not rendered
H
MOHD. ALI v. STATE OF H.P. AND OTHERS 737
[R. K. AGRAWAL, J.]
uninterrupted service for a period of one year but he has rendered A
service for a period of 240 days during the period of 12 calendar
months counting backwards and just preceding the relevant date
being the date of retrenchment. In other words, in order to invoke
the fiction enacted in clause (2)(a) it is necessary to determine
first the relevant date i.e. the date of termination of service which
B
is complained of as retrenchment. After that date is ascertained,
move backward to a period of 12 months just preceding the date
of retrenchment and then ascertain whether within the period of
12 months, the workman has rendered service for a period of 240
days. If these three facts are affirmatively answered in favour of
the workman pursuant to the deeming fiction enacted in clause C
(2)(a) it will have to be assumed that the workman is in continuous
service for a period of one year and he will satisfy the eligibility
qualification enacted in Section 25-F. On a pure grammatical
construction the contention that even for invoking clause (2) of
Section 25-B the workman must be shown to be in continuous
D
service for a period of one year would render clause (2) otiose
and socially beneficial legislation would receive a set back by this
impermissible assumptions. The contention must first be negatived
on a pure grammatical construction of clause (2). And in any
event, even if there be any such thing in favour of the construction,
it must be negatived on the ground that it would render clause (2) E
otiose. The language of clause (2) is so clear and unambiguous
that no precedent is necessary to justify the interpretation we
have placed on it……”
In view of the aforesaid principles laid down by this Court and
also the categorical findings of the High Court, the contention of the F
appellant herein is not sustainable in the eyes of law since the provisions
are very clear qua the calculation of period.
12. Further, it is an admitted position that though the appellant
worked as such till 1991 under different work/schemes i.e. Rabi and
Kharif and completed 240 days in a calendar year only during the years G
1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in
the year 1990 and 19.5 days in the immediate preceding year of his
dismissal which is below the required 240 days of working in the period
of 12 calendar months preceding the date of dismissal, therefore, he is
not entitled to take the benefits of the provisions of Section 25F of the
H
738 SUPREME COURT REPORTS [2018] 6 S.C.R.
A Act and Division Bench of the High Court was right in dismissing the
appeal of the present appellant.
13. In view of the foregoing discussion, we are not inclined to
interfere in the decision passed by the High Court. The appeal is dismissed
leaving parties to bear their own cost.
B
Ankit Gyan Appeal dismissed.
C
D
E
F
G
H
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