- (1.) The workman has filed the instant Letters Patent Appeal against the order dated 28.7.2009 passed by the learned Single Judge, whereby Civil Writ Petition No. 9248 of 2000, filed by the appellant challenging the award dated 23.3.1999 (Annexure P-1), passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad, has been dismissed.
(2.) Vide award dated 23.3.1999, while rejecting the claim of the workman, the Labour Court came to the conclusion that since the workman had failed to establish that he had continuously worked for 240 days in a calendar year, therefore, termination of his services could not be said to be in violation of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). After taking into consideration the evidence led by the parties, the Labour Court further arrived at the conclusion that the workman had worked only for 222 days in the twelve calendar months prior to termination of his services. The contention of the workman that while calculating 240 days in a calendar year, Sundays and other holidays were to be counted, was rejected on the ground that the workman was working on daily wages and he was not being paid for Sundays and other holidays, therefore, in view of Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation, 1986 AIR(SC) 458, the Sundays and other unpaid holidays are not to be taken into consideration, while counting the actual number of days.
(3.) Before the learned Single Judge, the workman raised an issue with regard to the counting of Sundays and other holidays for the purpose of reckoning the actual working days, while relying upon the subsequent decision of the Hon'ble Supreme Court in Management of Standard Motor Products of India Limited vs. Parthasarathy and another, 1985 4 SCC 78, wherein it was held that while dealing with the expression 'actually worked', it should be taken to include the Sundays and other paid holidays. On the other hand, the management relied upon the decision of the Hon'ble Supreme Court in Bank of India and another vs. Tarun Kr. Biswan and others, 2007 7 SCC 114, wherein it was held that the workman was not being paid any salary for Sundays and other holidays, therefore, Sundays and other holidays shall not be counted towards the actual service of 240 days in a calendar year. The learned Single Judge rejected the contention of the workman and affirmed the award of the Labour Court, while making the following observations : "I am of the view, the payment of salary or otherwise on a Sunday does not make a difference. It is the nature of employment of a contract under which the person is working that is the determinant of his entitlement. A daily rated worker whose engagement is on daily basis and who is paid salary for the days which the person is actually working, cannot be said to be working even on holidays for the purpose of reckoning of 240 days. It is not really a case where there is any complaint that a holiday was not given by the workman every week. The ILO convention that requires that the worker shall be entitled to 24 hours holiday ought not to be understood as also extending a principle that wherever a reckoning of continuous service is to be made, holidays have also to be counted. It should necessarily depend on the nature of engagement of service. In the manner that the term 'continuous service' is attempted to be interpreted, there is no scope for a finding that the workman had completed 240 days of service. The plea complaining of termination of services contrary to Section 25-F of the Industrial Disputes Act therefore, does not merit acceptance.";