Chinnappa Reddy, J. - (1.) The Workmen of American Express International Banking Corporation who sponsored the cause of their fellow workman B. Ravichandran in an Industrial Dispute are the appellants in this appeal by special leave of this court. The American Express International Banking Corporation terminated the services of the workman on Oct. 31, 1975. It is common ground that the provisions of S. 25-F of the Industrial Disputes Act were not complied with. According to the management it was not necessary to comply with the provisions of S. 25-F as the workman concerned was not in continuous service for not less than one year as prescribed by S. 25-F read with S. 25-B of the Industrial Disputes Act. The tribunal upheld the contention of the management. The workmen have preferred this appeal.
(2.) The facts very briefly are that the workman joined the service of the American Express International Banking Corporation on Nov. 4, 1974 as a typist-clerk in a temporary capacity and was employed as such, with a number of short breaks, till Oct. 31, 1975 when his services were terminated. According to the workman excluding the breaks in service, he 'actually worked under the employee for 275 days during the period of 12 months immediately preceding Oct. 31, 1975 whereas according to the employer he actually worked for 220 days only. The difference between the two computations is due to the circumstance that the workman has included and counted Sundays and other paid holidays as days on which he 'actually worked under the employee, while the employer has not done so. The question for consideration is whether Sundays and other holidays for which wages are paid under the law, by contract or statute, should be treated as days on which the employee ,actually worked under the employer' for the purposes of S. 25-F read with S. 25-B of the Industrial Disputes Act. S. 25-F of the Industrial Disputes Act reads as follows:- "25-F. 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 - (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; ********** (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent of fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government for Such authority as may. be specified by the appropriate Government by notification in the Official Gazette)." Section 25-B defines and explains what is continuous service as follows:- "25-B. 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 purposes 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, 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 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 exceed twelve weeks." Sections. 16, 17 and 18 of the Delhi Shops and Establishments Act, 1954 which provide for 'Close-days', 'Weekly holidays' and 'Wages for the holidays' may also be extracted here and are as follows:- "Section 16. (1) Every shop and commercial establishment shall remain closed on a close day. (2) In addition to the close day every shop and commercial establishment shall remain closed on three of the National holidays each year as the Government may (by notification in the Official Gazette) specify. (3)(i) The Government may, by notification in the Official Gazette, specify a close day for the purposes of this section and different days may be specified for different classes of shops or commercial establishments or for different areas. (ii) Notwithstanding anything contained in sub-section (1), the occupier of any shop or a commercial establishment may open his shop or commercial establishment on a close day, if such a day happens to coincide with a religious festival, 'or the Mahurat day', (the day of the commencement of the financial year of the establishment concerned), provided a notice to this effect has been given to the Chief Inspector at least twenty-four hours before the close day and that in lieu thereof, the shop or the commercial establishment is closed on either of the two days immediately preceding or following that close day." "Section 17. Every employee shall be allowed at least twenty four consecutive hours of rest (weekly holiday) in every week, which shall, in the case of shops and commercial establishments required by this Act to observe a close day, be on the close day." "Section 18. No deduction shall be made from the wages of any employee on account of the close day under section 16 or a holiday granted under section 17 of this Act. If an employed is employed on a daily wage, he shall none the less be paid his daily wage for the holiday and where an employee is paid on piece rates, he shall, receive the average of the wages received during the week."
(3.) The learned counsel appearing for the parties cited in the course of their submissions the decisions of this court in Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, New Delhi, (1981) 1 SCR 789, Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd., Sholapur, (1981) 2 SCR 796, Mohan Lal v. Management of Bharat Electronics Ltd.. (1981) 3 SCR 518, Jeewan Lal Ltd. v. Appellate Authority, Payment of Gratuity Act, (1984) 2 Lab LJ 464 and Sakhkkar Mills Mazdoor Sangh v. Gwalior Sugar Mills Ltd., AIR 1985 SC 758.;