Ashok Bhushan - (1.) -Heard Miss Bushra Marium, learned counsel appearing for the petitioner and Sri Vivek Ratan Agarwal, learned counsel appearing for respondent No. 2.
(2.) BY this writ petition, the petitioner has prayed for quashing the award of the labour court dated 23rd February, 1984, passed in Adjudication Case No. 82 of 1982. A writ of mandamus has also been sought praying for a writ, order or direction commanding the respondents to take back the petitioner in its employment with effect from 23rd August, 1981 and to pay all his wages and other consequential benefits. Brief facts of the case, as emerge from the pleadings of the parties, are petitioner was working as apprentice since 23rd October, 1979 and continued to work as such till 22nd October, 1980. The petitioner worked till 22nd August, 1981, with respondent No. 2 and was paid wages on daily wage basis. An industrial dispute was referred by the State Government vide its order dated 24th June, 1982 under Section 4K of the U. P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The dispute referred was as to whether termination of services of workman with effect from 23rd August, 1981, was valid or not and if not to what relief the workman is entitled. The petitioner's case was that after completion of apprenticeship he was engaged as Mechanical Draughtsman with effect from 23rd October, 1980 and he was illegally removed on 23rd August, 1981. The petitioner's case was that he has worked for more than 240 days, hence his termination was contrary to the provisions of the Act. The employers' case was that workman was engaged on 26th October, 1980 and worked till 23rd May, 1981 and again was temporarily engaged from 23rd June, 1981 to 22nd August, 1981. The employers stated that workman has worked only for 214-1/2 days and he was paid wages on daily wage basis. Both the parties lead their evidence before the labour court and the labour court gave its award dated 23rd February, 1983, in favour of the employers upholding the termination. The writ petition has been filed challenging the award of the labour court. Learned counsel for the petitioner, challenging the award given by labour court, raised following submissions : (i) The petitioner has worked more than 240 days preceding his termination and was entitled for the benefit of the provisions of the Act. The employers have incorrectly calculated the days of working by leaving out weekly holidays and other holidays. In the actual working the weekly holidays and leaves has to be included. Reliance has been placed by counsel for the petitioner on a judgment of Apex Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, 1985 (51) FLR 481 and on a judgment of Delhi High Court in Municipal Corporation of Delhi v. Sanjay Kumar and others, 2004 (100) FLR 938. (ii) The petitioner was in continuous service as defined under Section 2 (g) of the Act. (iii) The period of apprentice is to be included under the definition of Section 2 (s) of the Act. Adding the period of petitioner as apprentice, he has completed requisite number of days for protection under the Act.
(3.) LEARNED counsel appearing for the respondents, refuting the submissions of the petitioner, contended that petitioner has not completed 240 days and was rightly not given the protection of Section 6N of the Act. He further contended that petitioner was only a daily wager, hence he is not entitled for protection under the Act. Counsel for both the parties have placed reliance on judgments of the Apex Court, this Court and other High Courts, which shall be considered while considering the respective submissions.;