Judgment:
K. Kannan, J.
1. The writ petition challenges the award of the Labour Court rejecting the reference through a demand notice by the workman, when the Labour Court found that the workman had not established that he had completed a continuous period of 240 days. While reckoning the number of days of service, the Labour Court found on a documentary evidence given on behalf of the management, that the workman had completed only 222 days and that he was not entitled to any direction under the provisions of Industrial Disputes Act.
2. The argument on behalf of the counsel for the workman was that while reckoning the number of days, the Sundays and declared holidays ought to have been also counted and if such a reckoning is made, it could be seen that the workman had completed 240 days. The termination of services without complying Section 25-F ought to be therefore held, to be illegal. On the right of the workman to obtain reinstatement, the contention was that the officer under whom he was working had recommended him by his communication to the Government through letter dated 17.03.1992 that he was eminently fit for being regularized and therefore, the right which the workman was claiming was in some way conceded even by his superior officer. Consequently, he was entitled to be reinstated in service.
3. The learned Counsel appearing for the workman would bring in support of her contentions that Sundays and paid holidays had also to be included while computing the period of 240 days, the decision of the Hon'ble Supreme Court in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation : A.I.R. 1986 Supreme Court 458, where it was held that Sundays and paid holidays should also be taken into account for the purpose of total number of days on which the workman could be said to have actually worked. This judgment was rendered in the context of an interpretation given to the Delhi Shops and Establishments Act which provided in specific terms under Section 16 that every shop and commercial establishment shall remain closed on a 'close day' and Section 17 which enjoined that every employee shall be allowed at least twenty four consecutive hours of rest (weekly holiday) in every week, which shall, in the case of shops and commercial establishments required by this Act to observe a close day, be on the close day. This judgment was also referred to subsequently in Management of Standard Motor Products of India Limited v. A. Parthasarathy and Anr. : (1985)4 S.C.C. 78, that dealt with the definition of Section 25(B)(1) of the Industrial Disputes Act and held that while dealing with the expression 'actually worked' it should be taken to include the Sundays and other paid holidays. This was in the context of the applicability of, Section 25-F of the Industrial Disputes Act.
4. The contentions made by the counsel on behalf of the State were that the continuous period of 240 days as required to be proved must be done with reference to the provisions of the Industrial Disputes Act itself which is comprehensive in its import as regards every situation that might arise for a workman under the provisions of the said Act and no provision of the Shops and Establishments Act could be imported into the Industrial Disputes Act. The learned Counsel Mr. Nalwa would refer to the definition of continuous service as contained under Section 25(B)(1) of the Industrial Disputes Act which sets out that the 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 authorized leave or an accident or a strike which is not illegal or law Court of cessation of work which is not due to any fault on the part of the workman. The completion of 240 days itself is referred to Sub-section (2) of Section 25-F as the number of days which the person had actually worked under the employer. According to the learned Counsel, the expression 'actually worked' cannot include Sundays or other holidays where no wages had been paid. According to him, the workman was a driver on a daily wages drawing salary of Rs. 44.25 and admittedly he had not been paid any salary during Sundays and other holidays and therefore, he is not entitled to count Sundays also to estimate the completion of 240 days. He refers to the decision of the Hon'ble Supreme Court in Bank of India and Anr. v. Tarun Kr. Biswan and Ors. (2007)2 S.C.C. L&S; 600, which refers to American Express case as well. It was a case of the badli workman in a Bank, who for showing that he had completed 240 days of service, relied on the decision in American Express case for a reckoning that included Sundays also to count for what he had actually worked for. The submission that found favour in the Calcutta High Court was reversed by the Hon'ble Supreme Court distinguishing American Express case on the ground that it dealt with classes of temporary typists that provided for short breaks and Sundays and other holidays, when wages were actually paid under the law of contract, were to be treated as days on which the employee had actually worked under the employer. According to him, the driver had not been paid any wages during Sundays and other holidays and therefore, the decision in American Express case which was not applied by the Hon'ble Supreme Court in Bank of India case, cannot be followed.
5. The question whether Sunday could be added or not should be understood more in the context of how the contract and how Section 25-B itself defines the continuous service. The only exception which would enable a workman to deem the days when he had not actually worked are all days where a workman on account of sickness or authorized leave or an accident or a strike which was not illegal or lockout or cessation of work which was not due to any fault which could be taken to be included. The construction which the learned Counsel appearing for the workman wants to place is that Sunday is a day which is 'an authorized leave'. The learned Counsel would submit that India is a signatory to the ILO conventions that declare that a holiday of 24 hours shall be given for a continuous period of work for six days and therefore, it is irrelevant that the person who has not been paid the salary, if the Sunday holiday was availed of, as he was entitled to the said day and it must also be counted for the period of 240 days.
6. 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.
7. 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.
8. It is borne out from the records that there had been indeed a recommendation for regularization for the workman but for whatever reason, it was not taken up by the Government at the appropriate time. It shall always be open to the workman to make such representation as he is advised to do and secure whatever relief that is possible, pursuant to the recommendation that had been made in the year 1992. But, for the present, there is no question of reinstatement of a driver who had been employed on a temporary basis. On daily wages the law is to wellestablished in Secretary, State of Kamataka v. Uma Devi : (2006)4 S.C.C. 1, that even length of service is not necessarily the criterion for directing regularization or reinstatement. Public employments are not pocket buroughs in the hands of officers that pass orders of appointment. There are always recruitment rules that govern such employments and there cannot be a protection to a workman for reinstatement if there is no right to post which the person could claim. The workman cannot therefore have any relief before this Court and the writ petition is dismissed.