Rakesh Tiwari, J.@mdashHeard learned Counsel for the parties and perused the record.
This writ petition has been filed challenging the validity and correctness of the award dated 2.8.2002 which has been enforced by publication on the notice Board on 6.2.2003.
2. The case of the workman before the Labour Court was that he was engaged w.e.f. 7,6.1994 on daily wage @ Rs. 12/- per day as clerk in the establishment of the respondents and has worked for 293 days in a period of 12 months till termination of his services on 29.3.1985. The case of the employer before the Lower Court was that petitioner was engaged on need basis temporarily @ Rs. 12/- per day which came to an end on 7-6.1994 and that the workman had not put in continuous service of 240 days in a year as such provisions of section 6-N of the U.P. Industrial Disputes Act, 1947 were not applicable requiring the employer to pay notice pay and retrenchment compensation etc.
3. The Labour Court on appreciation of oral and documentary evidence found that from exhibit P.W. 1 it is evident that employer had employed the workman (c) 12 per day on the post of clerk and that according to the statement of Sri S. Kumar the workman was disengaged when no surplus work of clerical nature was available to be performed by him. The Labour Court in proceedings has recorded a finding of fact that from the date of appointment on 7.6.1994 to the date of termination on 25.3.1985 he has worked for 293 days only but he does not fulfill the condition precedent for applications of provisions of section 6-N of the Industrial Disputes Act, 1947 inas much as he had not put in continuous service as defined in section 2 (g) of the Act for 12 Calender months having only worked nine months in year 1984 and 1985.
4. In short according to the findings recorded by the Labour Court the period of work of the workman concerned is devided in two years i.e. 1984 and 1985 hence he has not worked for 240 days in 12 Calender months on the assumption that 12 Calendar Months would be counted from January to December end year and therefore held that there was no requirement for giving notice for compassionate appointment to the workman in this case. The Labour Court has also noted the fact that factory was closed in the year 1985-86 hence there could not have been continuing.
5. The reasoning given by the Labour Court is fallacious inasmuch as the Apex Court in the Case of
6. In the case of British India Courp. Ltd. v. Labour Court II Kanpur, 1968 IC 1316 All the Apex Court held that a workman remained in service for about 11 months and during the period he was on work for 240 days. It was held that he should be deemed to have completed one year of continuous service u/s 2 (g) of the Act. It is not necessary that the employment lasted 365 days.
7. In the case of Workmen of Bazpur Co-op. Sugar Factory Ltd. v. State of U.P., 1972 (24) FLR 40 the Apex Court held that for continuous work it is not necessary that the nature of work done by the workman should be similar throughout the year. The requirement is employment for not less than 240 days in a year.
8. In the case of Surendra Kumar Verma v. Central Govt. Industl. Tribunal-Cum-Labour Court, 1980 (41) FLR 357 (SC) the Apex Court held that for one year continuous service-the present legal position is that a workman who actually worked under an employer for not less than 240 days during a period of 12 months, shall be deemed to have been in continuous service for one year whether or not he has in fact been in such continuous service for one year. Both on principle and on precedent it must be held that the section comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e. the date of retrenchment, if he has, he could be deemed to be in continuous service for a period on one year.
9. Admittedly the Labour Court has recorded a finding of fact that workman has worked for 240 days in 9 months from the date of his termination,therefore provisions of section 6-N would certainly apply as has been held in British India Corporation Ltd. (supra).
10. Considering the submission made by Counsel for the petitioner, no relief can be granted in view of the decision rendered by the Apex Court in Secretary, State of Karnataka v. Uma Devi and others. 2006 (109) FLR 826 The daily wage employee has no right to service. However as the workman has completed 240 days of service hence in view of the law laid down in Mohan Lal (supra), it is directed that the workman may be paid a lump sum compensation with interest according to the provision of section 6-N of the U.P. Industrial Act. Therefore, average drawn by the workman in the last three months prior to his termination may be taken for calculation of his wages for the purpose of compensation u/s 6-N of U.P. Industrial Disputes Act, 1947 with 6% simple interest per annum within a period of one month from today.
11. The writ petition is accordingly allowed. The impugned award dated 2.8.2002 passed by Presiding Officer, Labour Court, Gorakhpur, respondent No. 1 is set aside. No order as to costs.
12. The petitioner may file a certified copy of this order before the concerned authority within 15 days from today for necessary action and implementation of this judgment.
