Gurmeet Singh Sandhawalia, J. - (1.) CHALLENGE in the present writ petition is to the award dated 1.9.1993 (Annexure P/3) passed by the Labour Court, Hisar directing reinstatement of the workman with full back wages and continuity of service and other consequential benefits on the ground that he had worked for 253 -1/2 days by adding four notional paid days in each month during the period of service. It was accordingly held that the workman is entitled to benefit of provisions of Section 25 -F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") as no notice was given before terminating his service. It was also held that it was a case of unfair labour practice and work was available and somebody else was appointed after the discharge of workman. Counsel for the petitioner has vehemently submitted that the reasoning given by the Labour Court is not justified as it was noticed that he had worked from 7.8.1987 to 5.4.1988 and even if complete days of the months including Sundays are to be counted for the said period, the total number of days comes 243 days. The Labour Court itself recorded a finding that the workman absented from duty for 17 days and thus, he would have only worked for 226 days. It is, thus, submitted that the reasoning adopted by the Labour Court is not justified.
(2.) AFTER hearing the counsel for the petitioner and perusing the paper -book, it transpires that claim of the workman as per claim statement was that he had worked from 7.8.1987 to 5.4.1988 which was 243 days in total. He had also claimed that he had worked 18 times for 32 hours and not taken any weekly holiday and his attendance was wrongly shown as 221 -1/2 days. The plea also was taken that other persons were appointed after his termination and names of some of the employees were given. In the reply filed by the petitioner -Board, it is admitted that the workman had worked for the said period which comes to 221 -1/2 days. It was denied that he had worked on regular basis. It was also denied that he had worked beyond his duty time nor he was asked to do any work beyond the prescribed limit. The Labour Court examined documents Ex.M -1 to Ex.M -38 and while taking into account the photostat copy of the attendance sheets Ex.M -17 to Ex.M -38 came to the conclusion that the workman had worked for the said period except 17 days when he was reported to have been absent. However, the Labour Court went on to hold that since no weekly rest was allowed to the workman nor any other paid holidays such as Dussehra and Diwali which had also intervened, the benefit of the ratio of the judgment of the Hon'ble Apex Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, : A.I.R. 1986 SC 458 had to be given. In the said judgment it has been held that the workman was entitled to claim Sundays and other holidays, given to the workmen. Accordingly, 32 days on account of notional paid holidays was added to 221 -1/2 days and as such it was held that the workman had worked for 253 -1/2 days. Counsel for the petitioner is well justified in submitting that if all the days including Sundays of the period from 7.8.1987 to 5.4.1988 for which the workman had worked is counted, it would only come 243 days and the finding of fact was recorded by the Labour Court itself that the workman remained absent for 17 days from duty, thus, question of completing 240 days did not arise. The observations of the Apex Court in Workmen of American Express International Banking Corporation's case (supra) would not apply in such circumstances as the workman was paid for the said days and even for Sundays. The concept of adding 32 days to the total number of days was not the ratio laid down by the Hon'ble Apex Court and the question was whether Sundays and other holidays should be treated as working days. Even after granting the benefits of Sundays and all holidays which fell during the period for which the workman had worked i.e. from 7.8.1987 to 5.4.1988, the workman had never completed 240 days of service.
(3.) THE reasoning given that some body else was employed after the discharge of the workman amounted to unfair labour practice in the facts and circumstances was also without any evidence as nothing has been discussed by the Labour Court as to who was working in place of workman. Whether he was a junior to the workman or whether he was employed after the discharge of the workman. Accordingly, this Court is of the opinion that reasoning is not liable to be substantiated and, therefore, the same is not justified.;