- (1.) S. R. Singh, J. Subject-matter of impingement in the instant petition is the Award dated 10-5-1995 published on 13-7- 1995 rendered by the Labour Court, Kanpur in Adjudication Gate No. 152 of 1993 consequent upon Refer ence by the State Government under Section 4-K of the U. P. Industrial Disputes Act, 1947 (in short the 'act') vide order, dated 5-7-1993. The dispute referred to the Labour Court is extracted below : @hindi *ft "fir ?r f wr ffrr 8-8-1988 gt eft a'srfsm
(2.) THE Labour Court by means of the impugned Award has tilted the scale of justice in favour of the second respondent. It recorded a finding, vide order dated 12-1-1994 passed on application 9-D moved on behalf of the workman for summoning his personal file, that it was not in dispute that the workman (second respondent) was in the employment of the petitioner from 1-11-87 to 8-8-1988. It has been held, vide Award in question that the period between 1-11-1988 during which the workman worked as Salesman, bad ripened into 240 days, though under an unfair labour practice, his name was not shown in the muster roll maintained in the establishment and since the name of the workman was not enumerated in the muster roll of the petitioner's establishment, he would, according to the Labour Court, be deemed to have been employed in permanent capacity and his services were dispensed with in a manner militating against the fair labour practice. Sri V. K. Birla counsel for the petitioner canvassed that since the respondent-workman had pot endured in continuous service "for not less than one year" under the petitioner, the provisions of Section 6-N of the Act would not be attracted even if the respondent-workman be held to have com pleted 240 days of service in broken bits during his employment under the petitioner from 1-11- 1987 to 8-8-1988. To paraphrase it, Sri Bitla urged that as a condition precedent to the applicability of Section 6-N of the Act, two things have to be reckoned with viz. (i) the workman had been in employ ment "in continuous service for not less than one year under the employer", and (ii) during this period of one year of his employment, the workman had completed not less than 240 days of continuous service. The aforesaid submission made by the learned counsel for the petitioner cannot be lent countenanced, Section 2 (g) of the Act defines "continuous service" to mean "uninterrupted service and includes service which may be interrupted merely on ground of sickness and/or autho rised leave or an accident or strike which is not illegal, or a lock-out or cessation of work which is not due to any fault on the part of the workman, who during a period of 12 calendar months has actually, worked in an Industry for not less than 240 days shall be deemed to have completed one year of continuous service in the Industry". It is evident that the first part of Sec tion 2 (g) defines as to what is meant by 'continuous' service while its second part creates a legal fiction which visualised actual work for less than 240 days during a period of 12 calendar months" as one year of continuous service. The expression means and includes in Section 2 (g) makes the definition exhaustive 'continuous service' means 'uninterrupted service', but interruption caused due to any of the grounds enumerated in the section is to be discounted. The second part of Section 2 (g) in my opinion, carves out an exception to what is visualised by 'continuous service' for not less than one year' and equates actual service whether uninterrupted or interrupted due to any ground whatsoever, rendered for a period of 240 days, during a period of 12 calendar months "to continuous service for one year". The question is what is meant by the expression "during a period of 12 calendar months". In my opinion, the expression aforestated means 'in the course of 12 calendar months" and it does not necessarily mean "throughout 12 calendar months" preceding the relevant date from which the calculation is to be made in a given case. But the judicial pronouncements of binding character have construed the ex pression otherwise. In Stir Enmal and Stamping Works Ltd. v. Their workmen, AIR 1963 SC 1914, the Supreme Court while construing the expression 'continuous service for not less than one year' occurring in Section 25-F of the Industrial Disputes Act, 1947 (in short the Central Act) observed as under : "before a workman can be considered to have completed 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, he worked for not less than 240 days. "
(3.) PROVISIONS of Section 2 (g) and 6-N of the U. P. Industrial Disputes Act, 1947, have been construed in the like manner by a learned Judge of this High Court in Baljnath Bhaitacharya v. Labour Court, Allahabad and another, (1994) 3 UPLBEC 1842. The position has however been altered since 19-12-1963 whereafter the first of the twin conditions formulated by the Apex Court in Sur Enamel's case (supra) need not be fulfilled for invoking Section 25-F of the Central Act or Section 6-N of the State Act. It may be noticed that Section 2 (eee) of the Central Act which defined the expression continuous service" was in pan materia to the first part of Section 2 (g) of the U. P. Industrial Disputes Act, 1947, the second part of which is couched in a language used in Section 25-B of the Central Act as it stood before its substitu tion by Act 36 of 1964 w. e. f. 19-124964. As observed by the Supreme Court in Surendra Kumar Varma's case, 1980 (4) SCC 443, "section 25-F 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 service of the employer for a period of one year and should have worked for no? less than 240 days before he could claim to have completed one year's service so as to attract provision of Section 25-F" but Section 2 (eee) has been omitted and Section 25-B recast by Act 36 of 1964. The marginal title of Section 25-B as stood by Act 36 of 1964 is "definition of continuous service' while previously its marginal title was 'definition of one year of continuous service'. Section 25-B (y) of the Central Act as it now standi, creates repugnancy to Section 2 (g) of the Act in so far as it provides that- " (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 workman employed below ground in a mine ; and (ii) two hundred and forty days, in any other case. " Fortified by the pronouncements aforestated it can, indubitably, be said that the language employed in Section 6-N read with Section 2 (g) of the Act suggests fulfilment of the twin conditions of a workman being in employment of an Industry for one whole year and of having actually worked for not less than 240 days during the said period of one year as a sine qua non for attracting Section 6-N of the Act but the question that emerges for consi deration by the court is if Act 36 of 1964 is fraught with any consequence of bringing about any alteration in the legal position aforestated. In my opinion, it does have that effect. The reason is that the definition of, 'continuous service' given in Section 25-B of the Central Act as it stands substituted by Act 36 of 1964 shall override the definition of the said term as enshrined in Section 2 (g) of the U. P. Industrial Disputes Act, 1947 and to the extent of inconsistency/repugnancy, Section 2 (g) shall be void by virtue of Article 254 (1) of the Constitution of India. It has been held by the Apex Court in Gauri Shankar Gour v. State of U. P. , AIR 1994 SC 167 at p. 185 that "if the Parliament in exercising its power under Proviso to Article 254 (2) makes a law adding, amending or repealing the Union law, predominance secured by the State Law by the assent of the President is taken away and the repugnant State law though it became valid by virtue of President's assent would be void either directly or by its repugnance with respect to the same matter". The Apex Court went on to hold : "the Parliament may not expressly repeal the State Law and by necessary implication, the State Law stands repealed to the extent of repugnancy, as soon as the subsequent law of the Parliament creating repugnancy is made" In my opinion, Section 2 (g) of the Act stands implied ly repealed to the extent it is inconsistent with Section 25-B (2) of the Central Act. The predominance which the U. P. Act has, by virtue of Section ,6-R (2) over the Central Act, in respect of the determination of the rights and liabilities of the employers and workmen, will make no difference. It may be noticed that Section i (g) falls outside the periphery of Sections 6-J to 6-Q which provisions alone, according to Section 6-R (1) of the Act, have been imparted predominance over "anything inconsistent therewith continued in any other law" and not the definition of "continuous service. ";