BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petition is directed against the Award dated 4. 4. 96 passed the by Labour Court Bhilwara. The petitioner claims himself to be the workman employed as Painter on daily rated basis since 1. 07. 1986 until July, 1992 in the Public Works Department of the State of Rajasthan. His claim, thereafter, is that his services have been dispensed with without giving him any notice or wages in lieu of one month's notice as required u/s. 25-F (a) of the Industrial Disputes Act, 1947 and also that no payment of compensation u/s. 25-F (b) of the Act has been made. The petitioner has not only claimed that he is in continuous service since 1986 and is entitled to protection u/s. 25-F being in continuous service for more than a year in terms of Sec. 25-B (1) but he has also contended in alternate that even during the 12 calendar months immediately preceding the alleged termination of service he has actually worked for 240 days so as to be covered by Sec. 25-B (2) He has given details in his claim petition about actual working between Jan. 91 to Dec. 1992. He also summoned the entire record of his functioning with the respondents consisting of muster rolls from 1. 07. 86 to 31. 07. 92 and record of the payments made to the Painter on submission of cash receipts during September, 1991 to June, 1992. The Court observed that the requested documents had been produced as desired by the workman and also recorded that the workman has admitted in his cross-examination that the attendance shown in the muster rolls discloses correct position about his actual working. It recorded a finding that between Feb. 91 to Jan. 92 he has actually worked only for 162 days. However, the Award is conspicuously silent about showing consideration of any material concerning the period prior to Feb. 91 or period after Jan. 92 upto the alleged date of termination that is 1. 8. 92. It is also not the finding that the petitioner workman has not worked since Feb. 1992 at all. There is no dispute that the petitioner workman had made request for production of muster rolls since Jan. 1986 until the date of termination of his services as well as record of payment through receipts between Sept. 91 to July 92. The petitioner alleges that entire record has not been produced whereas the Court records that desired record has been produced. If the finding is accepted to be correct, then there is no consideration of record prior to Feb. 91 or after Jan. 92, whereas the petitioner claims to be in service continuously since Jan. 86 to July 92. If the Tribunal has considered the entire material that has been produced by the parties, then it is obvious that finding of the Labour Court that all desired record has been produced becomes patently erroneous. In either case the award suffers from an error apparent from record. It further appears that the Presiding Officer of the Labour Court was labouring under a serious misconception about the expression in continuous service for not less than year' used in Sec. 25-F of the Industrial Disputes Act, 1947. What is meant by continuous service for a requisite period for the purposes of Chapter V-A has been defined in Sec. 25-B of the Act which reads as under:- 25-B. Definition of continuous service. 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 cessa-ion of work which is not due to any fault on the part of the workman; (2) where as workman is not in continuous service within he 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 as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishments; (ii) he has been on leave with full wages, earned in the previous year; (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.
(3.) PERUSAL of the aforesaid provision makes it abundantly clear that it envisages viewing the question of `continuous service for one year or more' in two different alternative and independent perspective. Firstly a person may be in continuous service actually for a period of one year or more. In that event, the question is not of so much of counting the actual working days in calendar month but the question is of continuous service for a period with 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 cessaion of work which is not due to any fault on the part of the workman. If a person is in actual employment for a period of more than one year the question will have to be determined u/s. 25-B (1 ). It is only where a case is not covered under Sec. 25-B (1), one has to direct his enquiry into existence of conditions under sub-Sec. (2) of Sec. 25-B, which envisages that even where a workman is not in continuous service within the meaning of Sec. 25-B (1) for a period of one year or six months, as the case may be, still he shall be deemed to be in continuous service for a period of one year if the workman during the period of 12 calendar months immediately preceding the date with reference to which calculation is to be made, has worked under the employer for not less than 190 days in case of a workman employed below ground in a mine, and 240 days in any other case, or for a period of six months if the workman during the period of six calendar months preceding the date has actually worked under the employer for not less than 95 days in case of a workman employed below ground in a mine and 120 days in any other case. The actual working may be in fact in a period of less than 12 calendar months and may not be continuously for the requisite days. That is to say the concerned workman must have been in actual service, whether continuously or with breaks for 240 days in a span of period not exceeding 12 calendar months immediately preceding the relevant date of termination. As in the present case the claim is that the petitioner's services were terminated w. e. f. 1st Aug. 92, the relevant enquiry u/s. 25-B (2) shall be actual working days between Aug. 91 till July 92, which constitutes the span of 12 calendar months immediately preceding the relevant date. During this period he may or may not be employed in each of the calendar month nor it is required that actual working of 240 days be uninterrupted or continuously, 240 days actually working may be accounted by totalling the intermittent working during the said span. It is also no more in doubt that in calculating the actual working days, the paid holidays and weekly holdings are also to be included. The concept of `uninterrupted service' is not relevant u/s. 25-B (2) in contrast to Sec. 25-B (1 ). Thus, in order to determine the controversy u/s. 25-B (2) the first requisite is determination of the date with reference to which the actual working in the 12 preceding calendar months has to be computed. The learned Judge has singularly failed in determining this date at all with reference to which the computation has been made in case the employment of the workman is not covered u/s. 25-B (1 ). He has also failed to consider whether in view of the claim laid by the workman his case is to be dealt with u/s. 25-B (1) or on finding that his case does not fall under sub-Sec. (1) he was required to undertake enquiry into conditions of Sec. 25-B (2) The Labour Court Judge has neither applied his mind to claim of continuity in service since 1986 u/s. 25-B (1) nor about working since Aug. 91 to until July 92 u/s. 25-B (2) He has only considered the working between Feb. 91 to Jan. 92, for which there was no basic finding in the order. The Labour Court has also failed to consider that as per claim the date with reference to which actual working within 12 calendar months is to be computed has to be calculated backward from July, 92 and not from Feb. 92. He has directed the enquiry as if the computation of the working was to be with reference each Georgian calendar year and not with reference to the calendar months preceding the date of termination. ;