- (1.) BRIEFLY stated the contention of the petitioner is that he was engaged as a daily wage driver w. e. f. April 27, 1988 and has continuously worked up to January 10, 1089 when his services were terminated. Consequently, he has worked for more than 240 days and his termination has been effected without complying with the provisions of S. 25f (a) and (b) of the Industrial Disputes Act and therefore, the termination is per se void and he deserves to be restored back to his position.
(2.) IN this respect, the contention of the respondents is that Shri Bhika Ram, driver, was regularly working in the Panchayat Samiti on the post of a driver. He fell ill and went on a long leave and, therefore, just to carry on the work of this temporary vacancy, on account of the medical leave applied by Shri Bhika Ram, this man was engaged on daily wages of Rs. 20/- per day. It is not denied that he was engaged on daily wages at the rate of Rs. 20/ -. However, as per the respondents, he was appointed on May 26, 1988 and has remained in service up to January 10, 1989. It was contended by the respondents that in the month of June, he has worked for 25 days, in July for 6 days, in August for 27 days and in September, October, November and December 1988 for 26 days in each month and for ten days in January and accordingly he has worked only for 221 days and, therefore, he has not completed 240 days.
(3.) IN this respect, the learned counsel for the petitioner has drawn my attention to Annexure I issued by the Vikash Adhikari of the Panchayat Samiti in which he has mentioned that Shri Chaggan Lal has worked as a driver on account of the illness of the regularly appointed driver from July 2, 1987 to August 5, 1987 in one spell and thereafter he was appointed on April 27, 1988 and has been regularly working till the dale of this certificate i. e. September 17, 1988. However, in para 6 of the reply filed by the respondents, it has been mentioned that he has worked up to January 10, 1989 with certain breaks. The contention of Mr. Saluja is that these days have been calculated by excluding Sundays and paid holidays and this cannot be done in calculating a period of 240 days. Such days have to be included in the period of work. In this respect, he drew my attention to the decision of their Lordships of the Supreme Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation (1985-11-LLJ-539) wherein their Lordships observed as under (542-543): "the qualification for relief under S. 25f is that he should be a workman employed in an industry and has been in continuous service for not less than one year under an employer. What is continuous service has been defined and explained in Section 25b of the Act. In view of sub-section (2) of Section 25b the workman shall be deemed to be in continuous service if he has "actually worked under the employer" for particular period. The expression "actually worked under the employer" cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. Thus Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workman could be said to have actually worked". ;