Rajkot Dist. Panchayat and Another Vs Narsinhbhai Somabhai

@JUDGMENTTAG-ORDER

H.K. Rathod, J.@mdashHeard the learned Advocate, Mr. Premal R. Joshi, appearing on behalf of petitioners.

2. In the present petition, petitioner - Rajkot Dist. Panchayat has challenged the award passed by Labour Court, Rajkot in Reference No. 564 of 1989 dated 31st March,2006. The Labour Court has granted reinstatement with continuity of service without back wages of interim period.

3. Learned Advocate, Mr. Joshi, submitted that Labour Court has committed gross error in granting reinstatement to the workman. He also submitted that workman has abandoned the work which does not amount to retrenchment. He also submitted that Labour Court has committed an error in coming to conclusion that Panchayat has to call the workman when he abandoned the work. He further submitted that he was not a regular employee but daily wager and not appointed by the regular process of recruitment Rules and, therefore, he is not entitled the benefits of Section 25F of the I.D. Act,1947. He also submitted that workman had not completed 240 days continuous service and no such evidence has been produced on record by the workman. Therefore, the Labour Court has committed an error in believing the evidence of the workman. Except that, no other submissions made by learned Advocate, Mr. Joshi.

4. I have considered the submissions made by learned Advocate, Mr. Joshi and have perused the award passed by the Labour Court, Rajkot. According to workman, he was working since more than three years continuously on daily wages with the petitioner. His service was terminated by the petitioner on 19.2.1989 without compliance of the provisions of Section 25F of the I.D. Act,1947 and principle of natural justice. At the time of terminating the service of the workman, junior employees were continued. For that, no seniority list was maintained by the petitioner. Against these averments of the workman, petitioner has filed reply before the Labour Court and according to averments made in the reply that as and when work is required, the respondent workman was called by the petitioner. So there was no continuity of service of the workman considering these three years'' service period. The petitioner has mentioned the working days for the period 1.11.1986 to 31.12.1986 36 days; from 1.1.1987 to 31.3.1987 57 days and from 1.5.1988 to 31.1.1989 119 days. Therefore, the case of the petitioner was that workman had not completed 240 days continuous service. It was also a case of the petitioner that workman was gainfully employed.

5. Before the Labour Court, both the parties have produced certain documents on record. The workman was examined vide Exh.13 and petitioner has also examined one Shri Narendra M. Patel vide Exh.48. Thereafter, Labour Court has examined the matter on merits while appreciating the evidence led before it. In deposition of workman before the Labour Court, he narrated and supported the facts mentioned in statement of claim. The workman has produced documentary evidence vide Exh.14 to 22. It was a case of the workman that he remained unemployed in spite of sincere efforts made by him. He also deposed that he remained in continuous service with the petitioner during three years'' period and he is residing in joint family. In the evidence of the witness of petitioner Shri Narendrabhai M. Patel, he deposed before the Labour Court that he is giving the evidence on the basis of record and workman was engaged as and when work required. The service of the workman was not terminated by the petitioner and he had not completed 240 days continuous service. One admission was made by witness that it is true that after he left the job, he was again taken back in service by the petitioner. No correspondence made by the petitioner with the respondent when workman had left the job. It was also an admission of the witness that after 1989, the petitioner has not written any letter to the workman to resume the duty. No departmental inquiry was initiated against the workman. The said witness also stated in the evidence that if the workman is prepared to resume the duty, but they are not prepared to reinstate him. He also admitted before the Labour Court that petitioner has not provided any muster card and pay slip to the workman, but his presence was marked in muster and also his signature obtained in pay register. Meaning thereby that both the registers are in possession of petitioner. Thereafter, Labour Court has heard both the learned Advocates appearing for the respective parties. The reasons given by the Labour Court in Para.8. The Labour Court has considered that no doubt, a dispute has been raised by the petitioner that workman had not completed 240 days continuous service but in spite of the fact having documentary evidence with them, muster and pay register where the workman had signed was not produced by the petitioner before the Labour Court. The Labour Court has also considered that no documentary evidence given to the workman about the employment by the petitioner. It was an oral appointment and oral termination. In between not a single document about muster, pay slip, identity card or any kind of document was not given to the respondent workman by the petitioner. On the basis of these facts, Labour Court has believed the evidence of the workman that he had continuous service with the petitioner for a period of three years without any break. Once the workman who had completed 240 days service is established or remained in service for period of three years continuously by oral evidence of the workman and no rebuttable evidence produced by the workman in spite of the facts having the documentary evidence in possession of the petitioner, then, Labour Court has rightly come to conclusion that evidence of the workman is to be believed for establishing the fact that he had completed 240 days continuous service and remained in continuous service of three years without any break. It is not in dispute by petitioner that Section 25F of the I.D. Act,1947 has not been complied with at the time of terminating the service of the workman. Therefore, Labour Court has come to conclusion that it is not a case of abandonment of work because no letter was addressed to the workman by the petitioner when he had not reported for work. No departmental inquiry was initiated and, therefore, the contention of petitioner that workman had abandoned the work has not been believed by the Labour Court which is a right conclusion on the basis of evidence led before the Labour Court. Then, Labour Court has examined the further question whether gainful employment has been proved by the petitioner or whether unemployment has been proved by the workman. This aspect has been examined in detail by the Labour Court on the ground that workman should not remain without work about more than 10 years because he has maintained the family during this period. The Labour Court has also considered that petitioner being Government body, unnecessary burden should not have to be imposed against the petitioner about back wages. Therefore, considering these facts, Labour Court has set aside termination and granted reinstatement without back wages of interim period.

6. The law on this point is very clear. Initial burden is upon the workman to prove 240 days continuous service. How to prove these facts of completion of 240 days it depends upon the facts of each case. In case when workman is not having any documentary evidence with him and not provided by the employer, then, his oral evidence is sufficient to prove the facts that he had completed 240 days continuous service. If the evidence of workman is disputed or not accepted by the employer, then, it is a duty of the employer petitioner to disprove the oral evidence of the workman by producing necessary documentary evidence which are in possession of the employer. A moment the workman has deposed before the Labour Court that he had completed 240 days continuous service and no documentary evidence was given by the employer as it was an oral appointment and oral termination, then, his evidence must have to be believed unless the employer produced reliable documentary evidence to rebut the evidence of the workman. This aspect has been examined by the Apex Court in case of R.M. Yellatti Vs. The Assistant Executive Engineer, . The Apex Court has taken into consideration that such kind of cases specially relating to the Government body where such daily wagers are appointed orally and no documents given to the workman about their muster card and pay slip or identity card and that the workman remained handicapped for proving the completion of 240 days. Therefore, the Apex Court has observed that in such a situation, the evidence of the workman is sufficient to prove the facts that he had completed 240 days continuous service. If his evidence is challenged by employer, then, employer should have to produce necessary documents which are in possession of employer. In this case, workman was not having documentary evidence because it was not provided by employer. An admission of the witness of the petitioner that they used to obtain signature in musters and pay register. If this is the correct fact, then, they must have the documentary evidence with them and then, they should have to produce before the Labour Court to justify his contention and defence. In this case, it was not produced by the petitioner and, therefore, rightly an adverse inference has been drawn by the Labour Court. The Apex Court has considered the decision on the same subject matter in the case of The Range Forest Officer Vs. S.T. Hadimani, ; Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan and Another, ; M.P. Electricity Board Vs. Hariram etc., Manager, R.B.I., Bangalore Vs. S. Mani and Others, and Municipal Corporation, Faridabad Vs. Siri Niwas,

7. The above decisions have been analyzed by the Apex Court on the basis of the facts and law. The Apex Court has made following observations in Para.17, 18 and 19 which are quoted as under:

17. Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.

18. Now applying the above decision to the facts of the present case, we find that the workman herein had stepped in the witness box. He had called upon the management to produce the nominal muster rolls for the period commencing from 22.11.1988 to 20.6.1994. This period is the period borne out by the certificate (Ex.W1) issued by the former Asstt. Executive Engineer. The evidence in rebuttal from the side of the management needs to be noticed. The management produced five nominal muster rolls (NMRs), out of which 3 NMRs, Ex.M1, Ex.M2 and Ex.M3, did not even relate to the concerned period. The relevant NMRs produced by the management were Ex.M4 and Ex.M5, which indicated that the workmen had worked for 43 days during the period 21.1.1994 to 20.2.1994 and 21.3.1994 to 20.4.1994 respectively. There is no explanation from the side of the management as to why for the remaining period the nominal muster rolls were not produced. The labour court has rightly held that there is nothing to disbelieve the certificate (Ex.W1). The High Court in its impugned judgment has not given reasons for discarding the said certificate. In the circumstances, we are of the view that the division bench of the High Court ought not to have interfered with the concurrent findings of fact recorded by the labour court and confirmed by the learned single judge vide order dated 7.6.2000 in writ petition No. 17636 of 2000. This is not, therefore, a case where the allegations of the workman are founded merely on an affidavit. He has produced cogent evidence in support of his case. The workman was working in SD-1, Athani and Ex.W1 was issued by the former Asstt. Executive Engineer, Hipparagi Dam Construction Division No. 1, Athani-591304. In the present case, the defence of the management was that although Ex.W1 refers to the period 22.11.1988 to 20.6.1994, the workman had not worked as a daily wager on all days during that period. If so, the management was duty bound to produce before the labour court the nominal muster rolls for the relevant period, particularly when it was summoned to do so. We are not placing this judgment on the shifting of the burden. We are not placing this case on drawing of adverse inference. In the present case, we are of the view that the workman had stepped in the witness box and his case that he had worked for 240 days in a given year was supported by the certificate (Ex.W1). In the circumstances, the division bench of the High Court had erred in interfering with the concurrent findings of fact.

19. Before concluding, we would like to make an observation with regard to cases concerning retrenchment/termination of services of daily waged earners, particularly those who are appointed to work in Government departments. Daily waged earners are not regular employees. They are not given letters of appointments. They are not given letters of termination. They are not given any written document which they could produce as proof of receipt of wages. Their muster rolls are maintained in loose sheets. Even in cases, where registers are maintained by the Government departments, the officers/clerks making entries do not put their signatures. Even where signatures of clerks appear, the entries are not countersigned or certified by the appointing authorities. In such cases, we are of the view that the State Governments should take steps to maintain proper records of the services rendered by the daily wagers; that these records should be signed by the competent designated officers and that at the time of termination, the concerned designated officers should give certificates of the number of days which the labourer/daily wager has worked. This system will obviate litigations and pecuniary liability for the Government.

8. Subsequent to the decision in the case of R.M.Yellatti (Supra), the Apex Court has considered almost similar legal situation in case of Chairman, Oil and Natural Gas Corporation Ltd. and Another Vs. Shyamal Chandra Bhowmik, In this decision, the decision in the case of R.M. Yellatti (Supra) is also considered. The Apex Court has considered almost all the decisions which were considered by the Apex Court in case of R.M. Yellatti (Supra) and some more decisions have also been taken into account in the present reported decision and ultimately after considering the case of R.M. Yellatti (supra), the Apex Court has observed in Para.9, 11 and 12 as under:

9. In Municipal Corporation, Faridabad Vs. Siri Niwas, , it was held that the burden was on the workman to show that he was working for more than 240 days in the preceding one year prior to his alleged retrenchment. In M.P. Electricity Board Vs. Hariram etc., the position was again reiterated in paragraph 11 as follows: (SCC p.250)

11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of Municipal Corporation, Faridabad v. Siri Niwas JT 2004 (7) SC 248 wherein this Court disagreed with the High Court''s view of drawing an adverse inference in regard to the non-production of certain relevant documents. This is what this Court had to say in that regard: SCC p.198, para 15

15. A court of law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent.

11. In a recent judgment in R.M. Yellatti Vs. The Assistant Executive Engineer, the decisions referred to above were noted and it was held as follows:

Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings u/s 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case.

12. When examined with reference to the principle laid down in the aforesaid decisions, it is clear that the approach of the High Court i.e. the learned Single Judge as endorsed by the Division Bench, is not correct. The relevant issue was not considered in its proper perspective. The respective stand was to be examined in the light of law laid down by this Court in the decisions referred to above. The question of shifting of onus assumes relevance only when evidence is led. Almost all the decisions referred to above related to matters which came to the High Court after evidence was led before the Tribunal by the contesting parties. High Courts should not entertain writ petitions directly when claim of service of more than 240 days in a year is raised. Whether a person has worked for more than 240 days or not is a disputed question of fact which is not to be examined by the High Court. Proper remedy for the person making such a claim is to raise an industrial dispute under the Act so that the evidence can be analysed and conclusion can be arrived at. As in the instant case the legal position has not been analysed in the proper perspective, it would be appropriate if the matter is decided by the forum provided under the Act.

9. According to evidence of workman, he was remained in continuous service for three years. No rebuttable evidence was produced by the petitioner. Therefore, workman has also satisfied condition mentioned in Section 25B(1) of the I.D. Act,1947. Section 25B(1) is relevant which is quoted as under:

25-B. Definition of continuous service. - 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 legal, or a lock out or a cessation of work which is not due to any fault on the part of the workman.

9.1 If workman remained in service continuously for more than year without any break, then also, he entitled the benefits of Section 25F of the I.D. Act, 1947. That view is taken by this Court in case of Moti Ciramics Industries v. Jivuben Rupabhai 2000 2 CLR 156. The view taken in Moti Ciramics Industries case is as under:

Both, on principles and on precedent, it must be held that Section 25B(2) provides a situation where the workman is not in employment for a period of 12 calender months but has rendered service for a period of 240 days within the period of 12 calender months and commencing and counting the back ward from the date of retrenchment, if he has, he would be deemed to be in service for the purpose of Section 25B and Chapter V-A and once it is found that the workman is in continuous service u/s 25B(1) of the Act and the workman is satisfying the conditions and contingency mentioned in the said Sub-section (1), then, it is wholly immaterial whether he has worked for a particular number of days in a particular year. Contingency which demands the worker to work for a period of 240 days as provided by Sub-section (2) of Section 25B would come into play provided the workman is not in continuous service as required u/s 25B(1) of the ID Act.

After considering the above provisions and the interpretation of Section 25B(1) as also (2) of the ID Act, I have also considered the decision of the apex Court reported in Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, in the case of Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation. In the said decision, the apex Court has interpreted the provisions of Sub-section (2) of Section 25B of the ID Act and has also interpreted the actual working days of calculation including Sundays and other paid holidays can be taken into account. While interpreting Sub-section (1) read with Sub-section (2) of Section 25B of the ID Act, I have also taken into consideration the observations made by the apex court in paragraph 4 of the said decision which are as under:

4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and Human Rights'' legislation are not to be put in procrustean beds or shrunk to Liliputian dimensions. In construing these legislation, the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the ''colour'', the content and the ''context'' of such statutes.(We have borrowed the words from Lord Wilberforce''s opinion in Prenn v. Simmounds 1971 (3) All ER 2371. In the same opinion, Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic consideration. In one of the cases cited before us, that is, Surendra Kumar v. Central Government Industrial Tribunal cum Labour Court, we had occasion to say, "Semantic luxuries are misplaced in the interpretation of ''bread and butter'' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.

In a number of existing industrial establishment, both public and private, it has become a common tradition for employers to exploit the workmen on trivial grounds and thereby to adopt all sorts of unfair labour practices to terminate the services of such workman in the name of retrenchment and disciplinary action. Such victimized workmen are also mercilessly denied of their benefits for which they are otherwise entitled to inspite of existence of several constitutional and statutory safe guards for the protection of industrial workmen, there have been many of such cases where they are exploited. But the courts have been putting very much interest to do the socio economic justice with such victims and to protect their rights and interests. It is also required to be appreciated that the courts are creating new approaches for giving meaningful interpretation to the statutory provisions where the workman is claiming for the protection and benefits for which they are legally entitled to. It is also the anxiety of the court for strong and determined smooth exercise of legal wisdom to protect the interest of the workman to the possible extent within the frame work of statutory provisions. It is also required to have new approach to provide social justice to the victimized workman and to protect their interest against the evil practices of the employer. Therefore, it is necessary to have humanitarian approach while applying liberal construction to bring out exact meaning of the relevant statutory provisions which remove the injustice done to the industrial workmen by termination and the employer''s denial to pay benefits to such workman for which they are legally entitled to u/s 25F of the ID Act on the ground that the workmen did not have continuous service of 240 days as contemplated u/s 25B of the ID Act.

Therefore, according to my view, if the workman is satisfying Sub-clause (1) of Section 25B of the ID Act, then, it is not necessary for the workman to satisfy the deeming provision which has been made under Sub-clause (2) of Section 25B of the ID Act. Therefore, considering these provisions of Section 25B of the ID Act, upon conjoint reading of Section 25B with Section 25F of the ID Act, it becomes clear that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer unless the employer has to satisfy condition precedent mentioned in Sub-clause (a) to (c) of Section 25F of the ID Act.

9.2 The view taken in Moti Ciramics Industries (Supra) has been considered by Division Bench of this Court in case of S.R. Bharai v. Union of India 2005 Lab.I.C. 3499. The relevant observations are in Para.9 which is quoted as under:

9. The question whether Telephone Department is an `industry'' has been answered by the Apex Court in General Manager, Telecom Vs. A. Srinivasa Rao and Others, overruling two of its earlier decisions in Sub-Divisional Inspector of Post, Vaikam, and others Vs. Theyyam Joseph, etc.,, and Bombay Telephone Canteen Employees'' Association, Prabhadevi Telephone Exchange Vs. Union of India and another, Once Telecom Department has been held `industry'' by Apex Court in A. Srinivasa Rao case (supra), Himanshu Kumar Vidyarthi case (supra) is not helpful to the respondents in this case. Dailywager is entitled to protection of Section 25F of I.D. Act provided he has continuously served for a requisite statutory minimum period in a year. Having done so, termination of service of such a workman without complying with Section 25F is illegal (See Rattan Singh v. Union of India, (1997) 11 SCC 396 It is contended by the respondents that petitioner did not complete 240 days in a year. We fail to understand this contention. In the affidavit of Vinod Prakash, T.D.M. Junagadh, dated nil November 1992, it is stated in paragraph 7 that petitioner was relieved from service with effect from 28.5.1989 and not in 1990 as suggested by the applicant. With this background, the documents filed by the respondents vide affidavit of S.P. Snehi, A.G.M. (Admn.), O/o.G.M.T.D., Junagadh dated 17-02-1998, may be examined. Counting backwards from 27-05-1989 to 20-05-1988 during the year 1989-88, the total working period comes to 240 days in a year taking into consideration the per day normal working hours of an employee. The case of petitioner, who falls u/s 25B(1), he having been in continuous service for a year, as such satisfies the requirement of Sections 25B(1) and 25B(2) of the I.D. Act. (See Moti Ceramic Industries v. Jivuben Rupabhai and Ors. 2000 (41) GLR 1558 and Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, . Therefore, the petitioner is entitled to protection of Section 25F of the I.D. Act both ways. The termination is hit by Section 25F r.w. Rule 77 of Industrial Disputes (Central) Rules, 1957, therefore, it amounts to retrenchment, being violative of these provisions.

9.3 Then, the Apex Court has considered provisions of Section 25B(1) of the I.D. Act, 1947 in case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, which are quoted as under:

8. As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act). Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of non-renewal of the contract of employment; or iv)termination of the service on the ground of continued ill-health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a workman for any reason, would constitute retrenchment. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee;that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act. The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely:

i) one month''s clear notice in writing indicating the reasons for retrenchment or that the workman has been paid wages for the period of notice in lieu of such notice;

ii) payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part thereof, in excess of six months;

iii) a notice to the appropriate Government in the prescribed manner.

9. To attract the provisions of Section 25F, one of the condition required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workmen shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible u/s 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in Sub-Section (1). The workmen must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of Sub Section(1) of Section 25B is that the workmen should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in Clause (a) and (b) of Sub-s(2). By the legal fiction of Sub-section 2(a) (i), the workmen shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workmen has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.

9.4 Recently, the Division Bench of Delhi High Court has also considered provision of Section 25B(1) and (2) after considering decision of Moti Ciramics Industries as referred above in case of Suraj Pal Singh Vs. The Presiding Officer and Another, (Delhi Division Bench) in case of Suraj Pal Singh v. Presiding Officers and Ors.

9.5 In view of the above decisions and observations, if workman remained in service continuously for more than one year without any interruption, entitled the benefit of Section 25F of I.D. Act, 1947. Looking to the facts of this case, respondent workman remained in service for more than three years continuously without interruption and no rebuttal evidence produced by petitioner on record, then, it is legal obligation upon petitioner to comply with the provision of Section 25F of the I.D. Act, 1947 which admittedly not complied with, then also, termination is ab initio void. Therefore, also view taken by the Labour Court is legal.

9.6 The Labour Court has rightly denied full back wages of interim period. The reference of 1989 where workman gave evidence in 1999 after a period of 10 years. The workman cannot remain totally unemployed for such a long period. Therefore, presumption against workman has been drawn by the Labour Court. The Labour Court has also considered that petitioner is also public body and cannot be made liable for back wages for such a long period, when there was delay made by workman in disposing reference. Therefore, according to my opinion, Labour Court has rightly denied the full back wages of interim period.

9.7 Recently, the Apex Court has examined the issue that initial burden to prove 240 days continuous service is not upon the Management, but upon the employee. But once workman has proved 240 days continuous service by leading his oral evidence on oath then, burden shifted upon Management to disprove said evidence of workman by producing relevant record maintained by Management or not, is not considered by Apex Court. The decision in case of Municipal Council, Sujanpur Vs. Surinder Kumar, is delivered by two Judges, but on the subject, decision of three Judges in case of R.M. Yellatti Vs. The Assistant Executive Engineer, as referred above has not been considered. Therefore, decision of R.M. Yellatti is considered by this Court as same is delivered by three Judges Bench.

9.8 The contention raised by learned Advocate, Mr. Joshi, that respondent was not appointed as per recruitment Rules, therefore, Labour Court has no jurisdiction to adjudicate such termination. This aspect has been considered by Apex Court in case of Vikramaditya Pandey v. Industrial Tribunal and Anr. reported in 2001 AIR SCW 310. The Apex Court has held that service Rules cannot prevail upon the provisions of I.D. Act, 1947. Recently also, the Apex Court has considered in case of Maha Nagarpalika reported in 2006 AIR SCW 2497 wherein it is held that appointment made by authority in violation of Act and Rules governing such appointment is void, though same would not mean that provisions of I.D. Act, 1947 were not required to be taken into consideration for determination of question, whether termination is legal or not. But same should have to be considered to be important factor in the matter of grant of relief. Therefore, contention of Mr. Joshi cannot be accepted. No such submission made before this Court by Mr. Joshi that relief of reinstatement is not possible. No such circumstances justified by petitioner before the Labour Court.

10. The decisions which have been relied and analyzed by the Apex Court in the aforesaid decision are the decisions of the two Judges Bench of the Apex Court and the decision in the case of R.M.Yellatti (Supra) is of three Judges Bench of the Apex Court. Therefore, considering the observations made by the Apex Court in the aforesaid decision and also keeping in mind the facts of the present case, according to my opinion, Labour Court has rightly appreciated the evidence of the workman as well as the petitioner and when petitioner is not able establish contrary facts before the Labour Court against the evidence of workman by producing necessary documents which were in the possession of the petitioner. This conclusion of Labour Court is inevitable. The Labour Court has given cogent reasons in support of its conclusion. There is no error committed by the Labour Court. There is no infirmity in the award pointed out by learned Advocate, Mr. Joshi. However, this Court having very limited jurisdiction while examining the award of the Labour Court under Article 227 of the Constitution of India, this Court cannot act as an appellate authority to re-appreciate the evidence on record as well as in case of two views are possible, even then this Court has no jurisdiction to interfere with such award. The Apex Court has examined about the power and jurisdiction of the High Court under Article 227 of the Constitution of India in case of Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, . The Apex Court observed that, Sthe High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.�

11. In view of the above observations of the Apex Court, the contention raised by learned Advocate, Mr. Joshi, are not acceptable by this Court and, therefore, the petition requires to be dismissed.

12. In view of this, there is no apparent error committed by the Labour Court while passing such award and, therefore, according to my opinion, Labour Court has rightly passed an award and there is no error committed by the Labour Court which require any interference by this Court while exercising the power under Article 227 of the Constitution of India. Hence, there is no substance in the present petition. Present petition is dismissed.